National anti-corruption inspector powers ‘inadequate’

High-profile defamation barrister warns of a ‘serious gap in the draft legislation’ around the legality and fairness of the proposed body.

Bruce McClintock SC. Picture: NCA NewsWire / Damian Shaw

The Albanese government faces wide-ranging calls to make changes to its proposed national anti-corruption commission, amid warnings from some of the country’s top legal minds that oversight of the powerful body is inadequate and more safeguards are required to protect witnesses.

Opposition legal affairs spokesman Julian Leeser declared “the government’s got a lot more work to do to” after 80 submissions to the parliamentary committee scrutinising the NACC bills were published on the eve of four days of public hearings, which began on Tuesday. Defamation barrister Bruce McClintock SC warned the legislation failed to give the independent inspector overseeing the body “essential power to ensure that the NACC both complies with the law and behaves fairly”.

Mr McClintock – who is also inspector of the NSW Law Enforcement Conduct Commission and Northern Territory ICAC and a former inspector of the NSW ICAC – said there was a “serious gap in the draft legislation” and called for the inspector to be able to regularly conduct audits to monitor the agency.

Under the proposed laws, the inspector is given powers to detect and investigate corruption within the NACC, but Mr McClintock said this conduct was unlikely to occur. Instead, he said the inspector should focus on “probable performance issues” within the NACC, such as failing to give adequate reasons for findings of misconduct or according procedural fairness.

“Each of these failures can have serious adverse consequences for persons upon whom they are inflicted,” Mr McClintock said.

“Yet there does not appear to be anything in the draft legislation which enables the inspector, or indeed anyone else, to deal with them. These are the real issues which will confront the agency and those with oversight and charged with making it properly accountable.”

Mr McClintock, whose clients have included Ben Roberts-Smith, Geoffrey Rush and Kerry Packer, also said it was not clear what kind of complaints the inspector could deal with under the current wording of the bill. Pressed on Mr McClintock’s assertion the inspector’s oversight of the NACC was “defective and not fit-for-purpose”, the Attorney-General’s Department said the inspector was not limited to looking at corrupt conduct and could investigate “any complaints” made.

Prime Minister Anthony Albanese. Picture: NCA NewsWire / David Geraghty

The government conceded the inspector’s role investigating complaints was reactionary. “It doesn’t have a just general free-ranging audit function, but a complaint could be made about any of those issues to the inspector and he would have the ability to investigate them, using the full range of powers,” said the AG department’s Sarah Chidgey, deputy secretary for the NACC group. “It could absolutely encompass any maladministration or misconduct.”

The Victorian Inspectorate, which monitors the state’s integrity agencies, said compared to the Independent Broad-based Anti-corruption Commission, there were fewer opportunities for the NACC’s inspector to oversee its conduct in real time or against legislated criteria, for example, in respect of the rights of witnesses.

“The most significant difference in the oversight function is that the NACC bill does not require the NACC to notify its inspector of the use of coercive powers, as IBAC is required to do,” Victorian inspector Eamonn Moran KC said.

University of Sydney law professor Anne Twomey said one of the most concerning aspects of the bill was a “lack of transparency”.

The NACC’s default position, as proposed by the government and supported by the opposition, would be to hold private hearings unless there are “exceptional circumstances” and where there is a public interest. The commissioner would only need to publish investigation reports when there have been public hearings or when they deem it is in the public interest to do so.

“The upshot is that the NACC will be a body with great powers that can investigate matters in secret, hold secret hearings and issue secret reports containing secret findings,” Professor Twomey said.

“This will undermine public trust in the NACC and is inconsistent with the principle of transparency.”

The Law Council of Australia said only superior court judges should be able to approve warrants requested by the NACC to tap the phones of public servants from the prime minister down.

It comes after The Australian revealed last week that judges and members of the Administrative Appeals Tribunal, which is stacked with political appointees, will have the power to sign off on warrants for anti-corruption investigators under the government’s legislation.

In its 63-page submission, the LCA made more than 30 recommendations “to improve the effectiveness and fairness” of the proposed commission, including exemptions for witnesses and people of interest to be able to disclose their dealings with the agency to a registered medical practitioner or psychologist.

The council also wants procedural fairness guidelines developed for public hearings and, like Mr McClintock, thinks the NACC inspector should have a “proactive audit function” of the agency.

The parliamentary committee is due to report by November 10, with the government hopeful of a vote in the Senate towards the end of next month.

Mr Leeser said several themes for reform were emerging, including a tighter definition of corruption, more protections for private hearings and a broader scope for judicial review.

“The serious submissions from bodies like the Law Council of Australia, the Queensland Law Society, South Australian Bar, Queensland Council for Civil Liberties, inspectors from Victoria and NSW and even the former independent national security legislation monitor are hardly a ringing endorsement of the government’s position that no changes are needed to the bill,” he said.

“It is also vital the committee hears from people whose lives have been adversely impacted by the operation of commissions at a state level so they can understand some of the pitfalls of these bodies.”