Judicial oversight of NACC must be taken seriously

Attorney-General Mark Dreyfus has confirmed that the proposed national anti-corruption commission will have minimal oversight as it exercises sweeping powers to investigate loosely defined corruption across all facets of government and the federal public service. Mr Dreyfus said concerns that warrants to record the telephone conversations and surveil the private homes of members of parliament could be signed off by the Administrative Appeals ­Tribunal misunderstood the process and the NACC’s proposed powers. The Attorney-General said it would be for the NACC to decide if it wanted to monitor telecommunications or surveil private premises. The function of the AAT was merely to “review for lawfulness” before a warrant was obtained.

The description of the NACC given by Mr Dreyfus makes it clear that the body will be legally empowered to do pretty much whatever it wants. In an address to the National Press Club on Wednesday, Mr Dreyfus said the NACC would receive $262m across four years and operate with powers and resources equivalent to a standing royal commission. The NACC will investigate serious or systemic corrupt conduct affecting any part of the federal public sector. It will have the power to investigate ministers, parliamentarians and their staff, statutory office holders, employees of all government entities, and contractors. Its jurisdiction will extend to conduct by any person who corrupts, or seeks to corrupt, a commonwealth official. The NACC will have discretion to begin inquiries on its own initiative or in response to referrals from anyone. It will be able to act on referrals from the public, whistleblowers and anonymous sources.

The NACC will investigate both criminal and non-criminal corrupt conduct, including conduct that occurred before its establishment. Mr Dreyfus said the definition of corrupt conduct in the legislation was broad and encompassed conduct by a public official that involved an abuse of office, breach of public trust, misuse of information or corruption of any other kind. The NACC will be able to use its powers to undertake an investigation into a corruption issue if the commissioner is of the opinion that it could involve serious or systemic corruption. For preliminary investigations, the NACC will be able to use powers to compel the production of information. The commissioner will have the discretion to hold a hearing in public if satisfied it is in the public interest and exceptional circumstances justify doing so.

Since the draft of the legislation was released, the federal government has been determined to encourage the broadest possible scope for the NACC’s powers. This has raised understandable concerns about who will be watching the watcher. The Coalition has called for changes to ensure a Federal Court or Supreme Court judge is needed to sign off on warrants rather than a member of the AAT, given that the targets of corruption inquiries can include prime ministers, attorneys-general, spy chiefs or senior public servants. The argument put by two former Liberal chairmen of the parliamentary joint committee on intelligence and security, James Paterson and Andrew Hastie, is that the decision to sign off on a warrant is too serious to be handled by a member of the AAT. “We can’t risk this regime (NACC) becoming a cartel with political appointees issuing warrants from the AAT,” Mr Hastie said. This is in part recognition of the political affiliations of many of those appointed to the ATT, a fact that does little to burnish the legacy of the former Coalition government, given many of the appointments were made by it.

But Mr Dreyfus’s response is not convincing. On the one hand, the Attorney- General is reviewing the AAT because of these concerns, while on the other he is claiming there will be only limited scope for the AAT to reject a properly made request. The issue is the ease with which the NACC will be able to insert itself into the background of government and what measures will be in place to avoid a politically targeted fishing expedition. This issue is relevant to both sides of politics and deserves greater consideration. So, too, does the ability of the NACC alone to decide whether hearings should be held in public.

Mr Dreyfus says he is happy to leave the NACC to make its own decision given that only a small minority of issues heard by equivalent state bodies are held in public. This is cold comfort for anyone who stands to be unfairly tarnished in the public square. Mr Dreyfus’s argument that involving a senior court judge would make the process overly complicated, cumbersome and deliver little benefit is not sufficient. Public hearings are a serious issue and warrant serious attention irrespective of the inconvenience this may cause. The NACC legislation has been introduced to the House of Representatives and referred to a newly created parliamentary committee, which is due to report by November 10. The government is hopeful of a vote on the bill in the final sitting fortnight of the year. Once set free, the NACC will be difficult to restrain. It will be better for everyone to get the details right now.