By Lisa Visentin and David Crowe
A defining dispute over public hearings will decide the final votes on the creation of a federal corruption watchdog after the Greens, crossbenchers and legal experts made a last-ditch call to modify the reform to ensure greater transparency.
Debate on the issue flared again after a parliamentary committee cleared the way for the formation of the National Anti-Corruption Commission by issuing a unanimous report to back the government’s draft law to set up the authority while recommending a handful of technical amendments.
Independent MP for Indi Dr Helen Haines has called for Parliament to back the National Anti-Corruption Bill, but has flagged she will move amendments.Credit: Alex Ellinghausen
But crossbenchers in both houses of parliament are holding out for changes to a crucial section of the bill that limits public hearings to “exceptional circumstances” and encourages most proceedings to be held in private.
Dr Helen Haines, Independent MP for Indi and deputy chair of the inquiry, described the government plan as a “very good bill” but said she would move amendments to remove the “exceptional circumstances” test and replace it with a revised “public interest” test for public hearings.
“It’s crucial that we get this done. We won’t know the level of corruption until the NACC starts taking referrals and starts undertaking investigations,” Haines said.
“The committee did not hear compelling evidence from the government in favour of retaining the exceptional circumstances test for holding public hearings, and many experts questioned why it was necessary,” Haines said.
Attorney-General Mark Dreyfus denied the threshold had been added as part of a deal with the Coalition to guarantee its support for the legislation, after blocking the committee’s request for this information by claiming public interest immunity.
“I can say very directly there have been no deals done anywhere in the parliament for the passage of this legislation,” Dreyfus said.
He indicated there was little appetite within the government to amend the threshold, saying he was “very confident” the bill had set down the appropriate settings for public hearings.
The committee – comprised of six government members, four Coalition members, and two crossbenchers – made six recommendations such as extending protections for the non-disclosure of identities of journalists’ sources and strengthening the remit of the NACC Inspector’s oversight function.
The anti-corruption bill establishes the office of an independent commissioner and up to three deputy commissioners who will have powers to investigate serious or systemic corrupt conduct in the federal public sector. This includes conduct by ministers, MPs, political staffers, government contractors, public servants and statutory officeholders.
Section 73 of the bill contains a presumption that hearings be held 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.
Greens Senator David Shoebridge also objected to the committee’s decision not to recommend changing the default requirement for private hearings.
“By keeping the exceptional circumstances test we know there’ll be far less scrutiny, not just of the federal government, not just of federal resources, but also of the NACC itself,” Shoebridge said.
Independent MPs Zali Steggall and Sophie Scamps have previously called for “exceptional circumstances” to be removed from the bill.
The Centre for Public Integrity, a non-profit group set up by former judges, stepped up its call for a more open approach to hearings by citing submissions to the parliamentary inquiry from state anti-corruption commissions that argued against the “exceptional circumstances” provision.
Former NSW Supreme Court judge Anthony Whealy, KC, the group’s chair, said its research also shows “public hearings are crucial to investigating corruption”.
Whealy noted the Victorian Independent Broad-based Anti-corruption Commission was the only state agency with the “exceptional circumstances” test and it had made a submission to the parliamentary inquiry opposing its use in the federal bill.
In evidence to the committee, IBAC commissioner Robert Redlich warned against adopting its threshold for public hearings, which the federal bill is modelled on, saying it had placed an “artificial limit” on the state agency.
Similarly, NSW Independent Commission Against Corruption chief John Hatzistergos gave evidence in support of public hearings, telling the inquiry he disagreed with the view that it was appropriate to “make findings against people – serious findings – in private”.
Griffith University professor AJ Brown, a board member of Transparency International Australia, also stressed the importance of open hearings and said a potential compromise would be to clarify the definition of an exceptional circumstance in the law before it is passed.
“The issue is really making sure that the discretion to hold public hearings is not something that gets either judicially interfered with or subjected to a political backlash down the track,” he said.
“That’s important when, in fact, the commission does go ahead and hold a public hearing that happens to cause particular people to feel uncomfortable.”
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