By Lisa Visentin
The head of the NSW Independent Commission Against Corruption says public hearings play a key role in underpinning the accountability of the agency, telling a federal parliamentary inquiry he would have concerns if allegations were examined entirely in private.
Addressing the controversy over the proposed bill to establish a National Anti-Corruption Commission, which mandates private hearings unless there are exceptional circumstances, NSW ICAC chief commissioner John Hatzistergos told the inquiry he was a “strong supporter of public hearings” because they kept state agency transparent and accountable.
“We’ve had investigations which have commenced in public and as a result of that information, other people have come forward and we’ve been able to go into other areas, which have raised significant issues of corruption,” he said.
John Hatzistergos, who was appointed Chief Commissioner of the NSW ICAC earlier this year, pictured in 2010.Credit: Michele Mossop
“It also, I think, shows transparency and accountability for the agency and justifies the case that ultimately is made for change.”
Hatzistergos also queried a widely-cited figure that the NSW ICAC held only around 4 or 5 per cent of its hearings in public, instead citing the agency’s total time holding public hearings in the 2020-21 financial year.
“If you look at the extent we do hearings, about 40 per cent of the hearing time – just over 40 per cent actually – is done in public,” he said.
Attorney General Mark Dreyfus cited the 5 per cent figure for the ICAC last month as he defended the NACC’s default setting for private hearings, saying it demonstrated that “it’s a fairly exceptional thing for an anti-corruption commission like this to hold a public hearing”.
“If you look at the extent we do hearings, about 40 per cent of the hearing time – just over 40 per cent actually – is done in public.”
NSW ICAC Commissioner John Hatzistergos
In 2020-21, the NSW ICAC held three public inquiries, which spanned 68 days of public hearings or 48 per cent of hearing time, compared with 85 compulsory examinations of witnesses in private across 72 days.
The federal government has relied on the ICAC figures to suggest a comparison of the three public inquiries with 85 compulsory examinations equated to around 3.4 per cent of hearings being held in public that year. But when asked for clarification by this masthead, the ICAC indicated this was not an appropriate comparison because compulsory examinations involved taking evidence from one witness only, with multiple examinations potentially conducted for a single investigation, whereas a public inquiry involved multiple witnesses over many days.
The parliamentary committee that will oversee the NACC began holding public hearings into the draft bill this week, with the limit on public examinations one of the key flashpoints. While the Opposition supports the exceptional circumstances threshold and wants further protections for private hearings, the Greens and a number of Independent MPs have criticised the measure as setting a too-high bar for public hearings.
Under the NACC bill, the federal watchdog must hold hearings in private unless the commissioner is satisfied there are “exceptional circumstances” justifying a public hearing and it is in the public interest to do so.
Hatzistergos said if the NSW agency conducted all its operations in private “I would have concerns about it. The commission is not in a position to defend itself.”
Gladys Berejiklian resigned as premier of NSW after an ICAC hearing into her conduct.Credit: Brook Mitchell
Instead, he said the ICAC held compulsory examinations of witnesses in private before determining whether to proceed to a public hearing if satisfied the threshold of systemic or serious corruption had been met.
“If we do feel that the relevant threshold is met...we go into a public inquiry, where everyone can see what the evidence is and has an opportunity to test that evidence”.
The alternative, he said, would involve holding private examinations, followed by a private inquiry and then publishing a report.
“At the end of the day, people haven’t seen the evidence which leads to you making the conclusions that you’ve formed and the recommendations for changes you’ve made.”
Victoria’s anti-corruption watchdog Robert Redlich, who in a submission cautioned the parliament against adopting the state’s “exceptional circumstances” model, told the inquiry that it was preferable for investigations to be public so long as the commissioner was satisfied that witnesses’ reputations would not be unreasonably damaged or their welfare harmed.
“Unfortunately, in Victoria, in relation to a number of our private investigations, there is so much public debate about the processes that we have followed in private, none of which has been either fair to the commission or to the individuals involved,” Redlich, commissioner of the Victorian IBAC, said.
Ann Vanstone, commissioner of the South Australian ICAC, which does not have the power to hold public hearings, gave evidence that the agency operated under a much narrower definition of corruption that required it to investigate potential offences so that may be prosecuted.
For that reason, she said it was not appropriate for the agency to hold public hearings. But she added that if the agency had a broader remit to hold royal commission style investigations into misconduct then public hearings would be useful “certainly for the benefit of the public to understand what had gone on in that particular episode”.
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