The National Anti-Corruption Commission Bill 2022: essential amendments

Committee Secretary

Joint Select Committee on National Anti-Corruption Commission Legislation

14 October 2022

Dear Secretary,

Inquiry into National Anti-Corruption Commission Bills 2022

Thank you for the opportunity to make a submission to the Committee’s inquiry into the  National Anti-Corruption Commission Bills 2022.

The Centre for Public Integrity is an independent think tank made up of integrity experts from the judiciary, legal practice and academia. Our work is dedicated to preventing corruption, protecting the integrity of our accountability institutions, and eliminating the undue influence of money in politics in Australia.  

We welcome the release of the National Anti-Corruption Commission Bill 2022 and believe that it proposes an integrity commission that will be fit for purpose in almost all material respects. However, the focus of our submission is on the aspects of the Bill that we have identified as deficient, and while some of these could be rectified with mere refinement, others require substantial amendment. They include:

We would be pleased to be of any further assistance the Committee may require in its  efforts to ensure that Australians get the powerful, independent National Anti-Corruption  Commission they want and deserve.

Yours sincerely,

Dr Catherine Williams

 

The National Anti-Corruption Commission Bill 2022: essential amendments

I. Jurisdiction  

While the National Anti-Corruption Commission Bill 2022 (the Bill) proposes a laudably broad definition of corrupt conduct, it does not propose to capture corrupt conduct by third parties where there is no wrongdoing by a relevant public official. This is a  significant deficiency of the legislation; as Figure 1 shows, if it is not rectified, it will leave the jurisdiction of the National Anti-Corruption Commission (NACC) jurisdiction inferior in this respect to that of all state and territory commissions other than Western Australia and Tasmania.

Figure 1: State and territory integrity commission jurisdiction
Consideration of the history of Australian integrity commissions’ jurisdiction in relation to corrupt conduct where there is no wrongdoing by a public official helps make the case for the NACC’s jurisdiction to be broadened in the way we propose.In the case of Independent Commission Against Corruption v Cunneen [2015] HCA 14  (Cunneen), the High Court was required to consider whether the New South Wales  Independent Commission Against Corruption (ICAC) had power to investigate an allegation of criminal conduct where that conduct had the potential to impede or impair the exercise of an official function by a public official in a manner involving no wrongdoing on the part of that public official. The decision turned on whether the phrase ‘adversely affects’ (in ‘adversely affects, or that could adversely affect … the exercise of official functions by any public official’ in the definition of ‘corrupt conduct’ at s 8(2) of the Independent Commission Against Corruption  Act 1988 (NSW)) referred to the probity or the efficacy of the exercise of relevant functions. The majority concluded that relevant conduct does not fall within the ICAC’s jurisdiction unless it has the potential to affect the probity of the exercise of an official function by a  public official. That is, without some wrongdoing on the part of a public official, relevant conduct would not be able to be investigated.Following the Court’s decision, the New South Wales Parliament passed retrospective validating legislation in the form of the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW). In passing this legislation, the Parliament affirmed its view that the ICAC must be able to investigate relevant conduct that adversely affects in any way the exercise of official functions.

In addition, the New South Wales Parliament enacted the Independent Commission  Against Corruption Amendment Act 2015 (NSW), which inserted a new subsection 2A at section 8 of the ICAC Act. This subsection provides as follows:

(2A) Corrupt conduct is also any conduct of any person (whether or not a  public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters—

(a) collusive tendering,

(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources,

(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage,

(d) defrauding the public revenue,

(e) fraudulently obtaining or retaining employment or appointment as a public official.

The Northern Territory and the ACT, which established their Commissions post-Cunneen (in 2017 and in 2018, respectively), both saw fit to include definitions of corrupt conduct materially identical to the new s 8(2A) of the ICAC Act. Victoria and Queensland similarly amended their integrity commission legislation in the wake of Cunneen.

Broad jurisdiction in practice

A study of what a broad jurisdiction enables in practice also demonstrates precisely why  it is imperative that the NACC have such a jurisdiction.

In his dissenting judgment in Independent Commission Against Corruption v Cunneen  [2015] HCA 14, Justice Gageler referred to two examples of investigations by the ICAC  into conduct that was not engaged in by a public official but which had the potential to impair the efficacy of an exercise of an official function by a public official.

The first was a report entitled “Report on investigation into certain applications made to the Department of Fair Trading for building and trade licences“. Here, the ICAC reported that a person had engaged in corrupt conduct by fraudulently providing forged documents and false information in applications for trade licences which he submitted to the Department of Fair Trading on behalf of other persons. As a result, the ICAC was able to make recommendations to help the Department prevent such fraud in future.

The second was a report entitled “Report on investigation into Mr Glen Oakley’s use of false academic qualifications“. Here, the ICAC found that over a period of 15 years, Mr  Oakley had created and used false academic qualifications in order to obtain employment in the New South Wales public sector. This compromised the integrity of public sector recruitment processes, and as a result of its investigation, the ICAC was able to recommend improvements.

If the ICAC’s jurisdiction had been limited to conduct by public officials, it would not have been able to investigate these cases and therefore precluded from strengthening the integrity of public sector processes.

We note that another example of the benefit of a broad jurisdiction is found in the example of the NSW ICAC investigations into mining licences in the Bylong Valley.  These investigations resulted in a series of reports, one of which was entitled  “Investigation into the conduct of Ian MacDonald, Edward Obeid Senior, Moses Obeid and  Others”. In this Report the ICAC made findings against various individuals, including businessmen Travers Duncan, John McGuigan, John Atkinson and John Kinghorn. The findings against Duncan, McGuigan, Atkinson and Kinghorn are salient because they did not involve any wrongdoing by any public official; rather, they were examples of conduct intended to deceive public officials or public authorities (by concealing the role of the Obeid family in a tenement the businessmen were seeking to sell for $500  million).

Law enforcement as an alternative to deal with corrupt conduct not involving wrongdoing by a public official

The second reading speech to the NACC Bill makes clear that ‘[o]ther conduct that could adversely affect public administration, such as external fraud, will continue to be dealt with by existing integrity agencies’, and provides the Australian Federal Police as an example of such an agency.¹

The difficulty with this approach is evident in the recent report by the Hon Tony  Fitzgerald AC KC and the Hon Alan Wilson KC into the Queensland Crime and Corruption  Commission. In considering the risk of narrowing corruption investigations via a ‘law enforcement’ approach, the authors point out that ‘a corruption investigation might not unearth sufficient evidence of criminality but may reveal that systemic or organisational changes are required to prevent any recurrence’.² Citing Gabriel Kuris, they conclude that  ‘There is a risk that a law enforcement approach to corruption can manifest as an  ‘orientation towards individual criminal acts and actors’ which ‘may cause (an anti-corruption agency) to miss the forest for the trees, or bias it towards cases with clear wrongdoing and identifiable wrongdoers.³

While this important area of corruption prevention (impaired confidence in the integrity of public administration via serious third-party fraud or contrivance) is left to the police, it should also be noted that the police do not have the powers of an anti-corruption commission. 

In areas of serious or systemic corruption, it would be a major omission from the scope of an effective National Integrity Commission if the definition of corrupt conduct were to be limited to third-party corruption of public officials. It must extend to cases of dishonest and fraudulent deception of public officials, where the conduct is capable of impairing the efficacy of public administration or public confidence in public administration. We recognise and understand the Government’s concern about the potentially enormous scope of the Commission’s work. Certainly, the Commission will need to manage its resources judiciously – as do all commissions around the country – but our view is that it is imperative that the Commission not be precluded entirely from investigating these important matters. 

The Centre for Public Integrity recommends that section 8(1) be amended to include an additional paragraph after paragraph (a):

(b) any conduct of any person that has the potential to impair the efficacy or  probity of an exercise of an official function, or public administration, by a public official

Alternatively, we recommend that an additional subsection be included after  subsection (1):

(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters—

(a) collusive tendering,

(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources,

(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage,(d) defrauding the public revenue,

(e) fraudulently obtaining or retaining employment or appointment as a public official.

II. The power to commence an investigation  

Referrals and complaints

The Bill ensures that the Commission will be able to deal with corruption issues referred by other agencies, as well as issues it becomes aware of ‘in any other way’: s 40. This means that it will be able to act on the basis of whistleblower reports and public complaints, including anonymous complaints.

While the Explanatory Memorandum is clear that this provision is intended to empower the Commission to also act on its own motion,⁴ it is unusual for the legislation not to include a specific own motion power. Insofar as this is a critically important power, it would be preferable to include a separate own motion provision (as state and territory commission legislation does).

The Centre for Public Integrity recommends that a clarifying subsection be included  at cl. 40:

(2) To avoid doubt, the Commission may conduct an investigation on its own initiative

Alternatively, cl. 40 could be restructured as follows so that the power of the NACC  to commence an investigation is identical to that of the New South Wales ICAC:

(1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it.

III. Public hearings  

Pursuant to cl. 62, the Commissioner may hold hearings for the purpose of corruption investigations. However, hearings must be held in private unless the Commissioner is satisfied that ‘exceptional circumstances’ justify holding the hearing in public, and it is in the public interest to do so (cl. 73).  

The ‘exceptional circumstances’ requirement is a serious back down on Labor’s much-publicised set of design features. It also involves a specious circularity: after the commission has carefully considered a range of factors, including whether a public hearing might unfairly damage a person’s reputation, and determined that it is in the public interest to hold a public hearing, it is met by a further hurdle. As Figure 2 shows,  Australia’s strongest watchdogs (the NSW ICAC and Queensland Crime and Corruption  Commission) are subject to no such requirement, and out of all Australian States and  Territories only the Victorian Independent Broad-based Anti-Corruption Commission need meet this threshold before proceeding to a public hearing. 

What constitutes ‘exceptional circumstances’ was considered by the  Victorian Court of Appeal in R and M v Independent Broad-based Anti-corruption Commissioner [2015] VSCA 271, with the Court holding that it requires circumstances that  are ‘clearly unusual and distinctly out of the ordinary’. Determining whether such circumstances exist requires “both a qualitative distinction between the circumstances which might ordinarily be inquired of by the respondent, and, in addition, an assessment that those circumstances might be reasonably rare”.

The inclusion of an ‘exceptional circumstances’ requirement would expose the Commission’s decision to hold a public hearing to legal challenge. Such challenges can be exploited by well-resourced litigants to both delay  Commission investigations and obtain knowledge of the material that the  Commission has against them, allowing them to potentially seek to interfere with evidence. The spectre of these risks may mean that the Commission is less likely to hold a public hearing, even in cases where the threshold would be met. 

In seeking to understand the value of public hearings in practice, the Centre for Public  Integrity invited current and former integrity Commissioners and integrity commission staff from around the country to participate in a survey. Those who responded were universally of the view that an exceptional circumstances threshold for public hearings is inappropriate. The Hon John McKechnie KC, Commissioner of the West Australian  Corruption and Crime Commission (WA CCC), pointed out that ‘it is hard to think of exceptional circumstances. This is traditionally used as a legislative brake on the exercise of power and seems unnecessary’. WA CCC Principal Legal Officer, Kirsten Nelson,  eloquently described the importance of public hearings to the work of integrity  commissions: 

Public examinations are essential to restoring public trust and confidence in public institutions because they facilitate accountability and transparency over the conduct of public officers and public authorities, and over the work of the Commission itself. From observing public examinations conducted in a manner that is fair and reasonable, the public may be assured that public officers act in the public interest, and not substantially motivated by private interest. And that public funds are spent in a manner that adds public value, rather than for private gain. Conversely, where public examinations expose conduct that is corrupt or constitutes serious maladministration there is assurance that individuals, systems and processes are called to account, where lacking.

The work of Commissions of inquiry is not to expose individual criminal conduct, as this is the jurisdiction of the criminal justice system. Rather the Commission uses particular investigations to expose conduct that may not be criminal but is the result of poor systems and processes and has resulted in the improper use of lawful powers, undue influence and, perhaps private financial gain. An examination of an individual in public provides a powerful representation of the corrosive effect of serious misconduct on the wider public and institutions.

One former Commissioner, who wished to remain anonymous, articulated the difficulty that an undefined term like ‘exceptional circumstances’ can present: ‘the concern […] is important matters that deserve expedition getting bogged down in the courts over such imprecise language’. This Commissioner described these court challenges as ‘very distracting, and therefore [they] can only serve to detract from the important work of integrity agencies by diverting their focus and resources into defending ones that are more often than not ill-founded when centred around the meaning and application of vague, and […] unnecessarily restrictive, legislative language’. This Commissioner also noted that the  protraction of investigations as a consequence of court challenges is undesirable from a witness welfare perspective: ‘the longer investigations take, the more stressed and likely to suffer psychological harm key witnesses and persons of interest become’.  

Integrity Commissioner for the Australian Capital Territory, the Hon Michael Adams KC,  described the imposition of the ‘exceptional circumstances’ requirement in the following  terms: 

The additional limitation imposes no rational basis for determining whether a public hearing is appropriate. It is difficult to see the logic of determining in the first instance that it is in the public interest to conduct a public hearing – taking into account reputational risk and human rights considerations – but then deciding that, despite the public interest, it should not occur. The effect is that the public interest is set aside for a reason incapable of definition. The public interest test will inevitably mean that many more private hearings are likely to be conducted than public hearings, so the latter will perforce be “exceptional”. If all that is meant is “the exception and not the rule”, in order to impose a positive requirement that justifies the public hearing, as distinct from it being the default position, this is already achieved by stipulating that requirements that directly relate to the public interest must be present before a decision to hold a public hearing can be made. Thus, the essential problems with the “exceptional” requirement are that it has no actual content capable of being sensibly weighed, undermines the public interest and will invite litigation which cannot usefully inform rational decision-making but will delay and confuse investigations at considerable cost.

The Centre for Public Integrity urges the Committee to seize the opportunity to learn from the lived experience of these current and former Commissioners and integrity commission staff in making its recommendations in respect of the proposed public hearing power contained in the NACC Bill. 

The Centre for Public Integrity recommends that cl. 73 of the Bill be amended as follows:

(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.

Reputational damage safeguards

It is important to recognise that the NACC Bill already proposes appropriate safeguards against undue reputational damage.¹³
Specifically, the Commission is empowered to make public statements at public hearings, as well as statements in investigation reports, if it is satisfied that it is ‘appropriate and practicable to do so to avoid damage to a person’s reputation’.¹⁴  

If, notwithstanding the lack of evidence establishing the need to provide for reputational safeguards, the ‘exceptional circumstances’ test cannot be eliminated without the inclusion of additional protections, the Centre for Public Integrity has developed a series of recommendations that would have the dual benefit of achieving this purpose and avoiding the imposition of undue restrictions on the work of the NACC.  

The Centre for Public Integrity recommends:

• Mandating the minimum factors that the Commission has power to  consider as part of the cl. 62 public interest test;
• Mandating the steps that the Commission is empowered to take by cl. 48(2)  and cl. 149(5);
• Requiring the agreement of the Chief Commissioner and at least one  Deputy Commissioner before a public hearing may be held;
• Requiring that in each investigation report a prominent table be included  listing all persons appearing, their reason for appearing (either as suspect  or witness) and whether adverse findings were made against them;¹⁵
• Requiring that public hearings are presided over by legally-qualified  Commissioners.

IV. Findings and reporting  

Under the proposed legislation, the Commission will be able to report their findings and opinions, including findings of corrupt conduct in relation to corruption investigations (cl. 149). The procedures relating to the publication of reports appear to be differentiated on the basis of whether an investigation included a public hearing, although as will be seen below the legislation is not clear and urgently requires clarification.

It is clear that in cases where at least one public hearing was held in the course of the investigation, the related report is required to be tabled by the Minister or Prime Minister in Parliament (and in this way, made public): cl. 155. Currently, cl. 155 requires that the  Minister or Prime Minister table the report within 15 sitting days after its receipt. The requirement to table any such report (indeed, documents generally) should be linked to days, not sitting days, and some mechanism should be included to ensure that the report can be distributed to parliamentarians even where Parliament is not sitting. In addition,  as a general rule tabling should be required as soon as is practicable and, at most, 7  days after a report is provided.  

In cases where no public hearings have been held and an investigation report has not been tabled, we have been unable to make sense of the interaction of cl. 156(2) and  157(1)(b). As we read the legislation, there are two options:

(a) that the cl. 157 ‘reasonable opportunity’ requirement only applies where more  than three months have passed since the Commission provided the relevant  report to the Minister (which appears to be the more obvious reading but seems  unlikely to have been intended); or 

(b) that the Commission will not be able to publish an investigation report unless at least three months have passed since the report was provided to the Minister or the Prime Minister. 

There may be some other reading of which we are presently unaware. Currently,  however, the legislation appears to require urgent clarification. 

In respect of the cl.. 157 ‘reasonable opportunity’ requirement, experience at a state-level indicates that rather than requiring an undefined but ‘reasonable’ opportunity be allowed, it would be preferable to specify a set minimum time (for example 3 months),  allowing the Commission to provide a longer time if it considers it appropriate to do so.

Finally, we note that the interaction between the currently-proposed limitation upon the use of public hearings, and these provisions, is that fewer reports will be made publicly available automatically and without delay.

The Centre for Public Integrity recommends that the reporting clauses be redrafted to achieve greater clarity.  

V. Protections and oversight  

Parliamentary Joint Committee on the National Anti-Corruption Commission

The Bill proposes the establishment of the Parliamentary Joint Committee on the  National Anti-Corruption Commission (Division 1 of Part 10). While this Committee cannot consist of more than 50 per cent of Government members (cl. 172(3)), pursuant to cl. 173(1) the Chair must be a member of the Government. Insofar as cl. 173(5) provides that the Chair will have a casting vote if votes are equal, the requirement that the Chair be a  Government member is a serious limitation upon the Committee’s independence. A  preferable approach would be that taken in Victoria, in respect of the Pandemic  Declaration Accountability and Oversight Committee: subsection 22(1A) of the  Parliamentary Committees Act 2003 (Vic) provides that ‘The chairperson of the Pandemic  Declaration Accountability and Oversight Committee must not be a member of a political party forming the Government’.

The Centre for Public Integrity recommends that cl 172(1) of the NACC Bill be  amended as follows:

(1) There must be a Chair of the Committee, who must be elected by the members  of the Committee from time to time.

(2) The Chair must not be a member of a political party forming the Government.

Alternatively, if this robust independence is unable to be achieved, some additional  protection must be put in place for appointments (and funding recommendations:  see below).

The clause in relation to appointments might take the form of the following  provisions, which are drawn from the Crime and Corruption Act 2001 (Qld):

The Minister may nominate a person for appointment to the office of chairperson  or deputy chairperson only if—

(a) the Minister has consulted with—

(i) the parliamentary committee; and  

(ii) except for an appointment as chairperson—the chairperson;  and

(b) the nomination is made with the bipartisan support of the parliamentary committee.

bipartisan support, of the parliamentary committee, means—

(a) support of the members of the parliamentary committee unanimously; or  

(b) support of a majority of the members, other than a majority consisting  wholly of members of the political party or parties in government in the  Legislative Assembly.

Pursuant to cl. 177(1)(g), the Committee’s functions will include reviewing the  Commission’s budget and finances, and reporting accordingly to the Parliament. The  Centre for Public Integrity believes that accountability institutions like the Commission should be funded via an Independent Funding Tribunal model. However, in the absence of such a Tribunal the Bill must, at a minimum, require funding recommendations to be bipartisan (as defined above) and require the Minister to table in the Parliament a  statement of reasons for any deviation from a funding recommendation by the  Committee. Any such requirement must specify a maximum number of days (not sitting days) within which tabling must occur.

A provision in relation to funding recommendations might look like the below:

(1) The Committee may only make a recommendation pursuant to s 177(1)(g) if the recommendation is made with the bipartisan support of the parliamentary committee.

The Centre for Public Integrity also recommends that a clause similar to the  following be included in the Bill:

(1) If the Committee makes any recommendation to the Parliament pursuant to s  177(1)(g), and such a recommendation is not accepted, the Minister must table a  statement of reasons in each House.

(2) A statement of reasons required to be tabled under subsection (1) must be  tabled within seven days of any budget or funding announcement relating to the  Commission

Inspector

Division 2 of Part 10 of the Bill also establishes an Inspector responsible for overseeing the operations of the Commission. While the Inspector is appointed by the Governor General on the Minister’s recommendation, the appointment can be vetoed by the  Parliamentary Joint Committee (s 185). We reiterate our aforementioned concerns in respect of the committee’s proposed composition.

Procedural fairness

Procedural fairness is enshrined via s 157, which requires that the Commission allow subjects of proposed adverse findings an opportunity to respond before any report is published. The use of the qualifier “reasonable” means that any person who is the subject of such a finding has a right to appeal in respect of whether the opportunity provided was “reasonable”. Protection of procedural fairness is inarguably of utmost importance; it should not, however, be able to be used by well-resourced parties as a  tactic to delay the release of Commission reports. For this reason, the Centre for Public  Integrity supports the adoption of measures designed to impose a specific timeframe  (for example, three months) within which subjects are required to respond, as long as the  Commission retains discretion to extend that timeframe where appropriate.

The Centre for Public Integrity recommends that s 157(2)(b) be amended as follows:

(2) The investigation report must not include an opinion, finding or  recommendation that is critical (either expressly or impliedly) of a Commonwealth agency, a State or Territory government entity or any other  person, unless the Commissioner has given the head of the agency, the head of  the entity or the other person concerned:

(a) a statement setting out the opinion, finding or recommendation; and (b) three months, or such longer period as determined by the Commissioner, to respond to:

(i) the opinion, finding or recommendation  

(ii) the proposed publication of the opinion, finding or recommendation

VI. Commissioner appointments  

There is to be one National Anti-Corruption Commission Commissioner, and up to three  Deputy Commissioners (cl. 16 and 18).

Under s 241, the Commissioner is to be appointed by the Governor-General on the advice of the Minister. The parliamentary Committee will, however, have veto power: cl. 241(1). Only persons who are retired judges (of a federal court, or a court of a State or  Territory), or who have been enrolled for at least five years as a legal practitioner of a  federal court or the Supreme Court of a State or Territory, are eligible for appointment as  Commissioner (cl. 241(3)).

At least two of the maximum three Deputy Commissioners must also be retired judges  (of a federal court, or a court of a State or Territory), or persons who have been enrolled  for at least five years as a legal practitioner of a federal court or the Supreme Court of a  

State or Territory (cl. 242(4)). The other Deputy Commissioner, if one is appointed, can be appointed on the basis of the Minister being satisfied that the person has appropriate knowledge, qualifications and experience (cl. 242(3)). The parliamentary committee will also be able to veto the appointment of a Deputy Commissioner (cl. 242(2)).

The Centre for Public Integrity has concerns about the value of the committee having veto power in circumstances where executive dominance of the relevant parliamentary committee is legislated (a matter which, as set out at paragraph V above, we hope will be resolved).

The process via which such significant appointments are made must be guaranteed to  be transparent. The Centre for Public Integrity considers that a robust process be legislated in order to promote public trust in the Commission’s work, and we would be  pleased to provide a supplementary submission if the Committee were to require further advice on this point.

We also believe that consideration should be given to including a provision equivalent to  s 26(3) of the Integrity Commission Act 2018 (ACT), prohibiting the appointment of current or former federal, state or territory parliamentarians as Commissioner, Deputy  Commissioner or Inspector.

Considering that a person without legal qualification could be appointed Deputy  Commissioner (which is entirely appropriate), we recommend that the Bill require that public hearings are presided over only by the Commissioner or legally-qualified Deputy  Commissioners. This is important because legal qualifications provide the necessary training in affording procedural fairness, and understanding of legal professional privilege, required to run public hearings. Under our recommendation a non-legally qualified Deputy Commissioner would still be able to participate in a public hearing, but not preside over it.

The Centre for Public Integrity recommends that an additional subsection providing as follows be included at cl. 73:

(6) A hearing may be held in public only where it is presided over by the Commissioner, or a Deputy Commissioner appointed pursuant to s 242(4).

VII. Provisions relating to journalists  

Section 31 protects journalists and their employers from being required to do anything pursuant to the Act that would disclose or compromise an informant’s identity.  However, Section 31(4) provides a search powers exception to this protection, stating that it ‘does not prevent an authorised officer from doing anything the authorised officer would otherwise be able to do in exercising powers under Part IAA of the Crimes Act  1914 and for the purposes of this Act’.

The inclusion of this provision means that even though the Act would not permit journalists and their employers to be compelled to do anything that might disclose or compromise an informant’s identity, on our present understanding it appears that officers of the NACC would be able to use the Commission’s search powers to seek to achieve those objectives. If this understanding is correct, it is important to note that sections 124(2A) and (2B) establish a public interest test in the case of search warrants involving journalists. However, pursuant to s 3C of the Crimes Act 1914 (Cth), such search warrants would be able to be issued by magistrates, or justices of the peace (or other persons employed in State or Territory court and who are authorised to issue search warrants). In light of the power that it appears authorised officers will have to search for documents that may reveal the identity of a journalist’s informant, and the complexity of weighing the public interest test factors in the case of journalists’ informants, any search warrants relating to journalists must be required to be issued by a judge. 

The Centre for Public Integrity recommends that an additional subsection be included at cl. 124, replacing the currently proposed subsection (2B) (which would become subsection (2C)).

(2B) For the purposes of issuing a warrant to which subsection (2A) applies, an ‘issuing officer’ is a judge of a State or Territory Court, or a judge of the Federal Court.

VIII. Legal professional privilege  

Clause 114(1)(b) appropriately abrogates legal professional privilege. However, pursuant to cl. 74 any evidence that would disclose legal advice or a communication protected by legal professional privilege must be given in private. This requirement will result in exploitation in order to disrupt Commission hearings, with the consequence that even those public hearings which are able to be held will be less effective.

Clause 74 must be amended in order to give the Commissioner a discretion to hear such evidence in private, rather than impose a mandatory requirement.

The Centre for Public Integrity recommends that cl. 74 be amended to read as  follows:

Evidence may be given in private if giving the evidence would:

(a) breach a secrecy provision; or

(b) disclose any of the following:

(i) legal advice given to a person;

(ii) a communication that is protected against disclosure by legal professional privilege;

(iii) information that the Commissioner is satisfied is sensitive information; (iv) section 235 certified information;

(v) intelligence information

IX. Section 235 certifications  

Pursuant to cl. 235, the Attorney-General has the power to certify that certain disclosures would be contrary to the public interest. Such a disclosure may be made where it would  (amongst other things):

• prejudice the security, defence or international relations of Australia;
• involve the disclosure of communications between a Minister and a State or  Territory Minister (or between State or Territory Ministers), and would prejudice  Commonwealth and State or Territory relations (or relations between the States  or Territories)
• involve the disclosure of Cabinet (or Cabinet committee) deliberations or decisions (cl. 235(3)).

While the Attorney-General is required to give any such certificate to the Inspector (s  235(8)(b)), the Centre for Public Integrity recommends an additional number of  protections in respect of information that is not certified as national-security information.  Firstly, it should also be required to be provided to the Chair of the Parliamentary Joint  Committee on the National Anti-Corruption Commission. Secondly, in cases where the  information affects a report’s conclusion, it should be made available on a confidential  basis to the entire Committee. Thirdly, insofar as we advocate a pro-disclosure culture in  respect of cabinet documents, we recommend that a s 235 disclosure certificate only be  able to be made in respect of cabinet documents where those documents were created  less than 30 days prior to the date of proposed certification.

X. Statutory review mechanism  

While we welcome the inclusion of a mandatory statutory review at cl. 278, the clause is weak in respect of what provision it makes for who must conduct the review, who can appoint those persons, and tabling. A robust statutory review clause would do the  following:

• specify who is qualified to undertake the review;
• require that such persons be appointed by the Parliament rather than the  Minister;
• mandate the minimum issues to be considered by the review;
• require that the review report be tabled within a set number of days (not sitting days).

The Centre for Public Integrity recommends that the review clause be structured as  follows:

(1) The Minister must cause a review to be undertaken of the first 5 years of the  operation of:

(a) this Act; and  

(b) the amendments made by the National Anti-Corruption 7 Commission  (Consequential and Transitional Provisions) Act 8 2022.  

(2) The review must commence no later than 5 years and one month after the day  on which the Act commences.

(3) The review must be completed no later than 12 months after the day on which  it commences.

(4) The review must be conducted by a former judge of the High Court of  Australia, or of the Federal Court of Australia, or of a Supreme Court of a State or  Territory.

(5) The review must include, but is not limited to, consideration of:

(a) the Act’s provisions in respect of public hearings;

(b) the Act’s definition of ‘corrupt conduct’;

(c) oversight mechanisms provided for by the Act; and

(d) emerging practice both domestically and internationally in respect of  any matter dealt with by the Act

(6) The review must include an opportunity for the following to make written  submissions on the operation of this Act:

(a) persons who are or have been public officials; and

(b) members of the public

(7) An entrusted person must, if requested to do so by the persons undertaking  the review, assist them in:  

(a) conducting the review; and  

(b) preparing the written report.  

(8) The Minister must cause a copy of a report of the review to be laid before each House of Parliament as soon as reasonably practicable after the review is completed, and at most seven days after it is completed.

We also recommend the exclusion of cl. 278(7), pursuant to which the statutory review would not be required if any parliamentary committee commences (or completes) a review during the 5-year period. A committee review is no substitution for an independent statutory review in circumstances where a committee undertaking such a review might be dominated by the executive.

References