30 November 2022 – The Australian Government passed long awaited legislation to establish a powerful, transparent and independent National Anti-Corruption Commission.
The Australian Labor Party won government in 2022 with the key election promise to restore integrity, honesty and accountability to government by establishing a federal corruption and integrity watchdog after a series of scandals involving hundreds of millions of taxpayer dollars were ignored by previous governments.
National Anti-Corruption Commission legislation
According to federal Attorney-General, Mark Dreyfus, the National Anti-Corruption Commission will:
- Have broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector by ministers, parliamentarians and their staff, statutory officer holders, employees of all government entities and government contractors;
- Operate independent of government, with discretion to commence inquiries on its own initiative or in response to referrals, including from whistleblowers and the public;
- Be overseen by a statutory Parliamentary Joint Committee, empowered to require the Commission to provide information about its work;
- Have the power to investigate allegations of serious or systemic corruption that occurred before or after its establishment;
- Have the power to hold public hearings in exceptional circumstances and where it is in the public interest to do so;
- Be empowered to make findings of fact, including findings of corrupt conduct, and refer findings that could constitute criminal conduct to the Australian Federal Police or the Commonwealth Director of Public Prosecutions; and
- Operate with procedural fairness and its findings will be subject to judicial review.
The legislation provides protections for whistleblowers and exemptions for journalists to protect the identity of sources, however has been criticised for its lack of public hearings and outdated whistleblower protections.
National Anti-Corruption Commission legislation precludes the holding of a public hearing unless the Commissioner not only concludes that it would be in the public interest to do so but also that “exceptional circumstances” apply.
If it is in the public interest that a particular hearing be held in public, then it cannot be in the public interest to foreclose such a hearing because “exceptional circumstances” do not exist.
“I will move an amendment to strike out the unnecessary and alarming “exceptional circumstances” requirement.
This is the single most important change to the Bill. The “exceptional circumstances” requirement is the biggest threat to the openness of the Commission.
My amendment will ensure that the Commissioner may decide to hold public hearing if the Commissioner is satisfied that it would be in the public interest. Tested. Simple. And safe.
This is not just a fine legal point. It is a threshold question for public trust and the principle of transparency.”
Helen Haines MP
In August 2017 Australia Institute held a conference in Canberra to establish a Federal Integrity Commission featuring Jacqui Lambie, Mark Dreyfus, David Ipp, Geoffrey Watson, Nick McKenzie, Linton Besser & Quentin Dempster & Ben Oquist. © Mark Anning photos 2017
Geoffrey Watson SC of NSW ICAC’s Operation Credo & Spicer fame argues the case for a transparent, accountable, independent integrity commission which properly examines the conduct of our political process. The conference in 2017 was organised by The Australia Institute to support the establishment of a National Integrity Commission. © Mark Anning photos 2017
Retired Judges Welcome Landmark NACC, but Lament Lack of Public Hearings
The establishment of a National Anti-Corruption Commission will change the way politics is conducted in Australia, and the impact on governance and accountability cannot be overestimated.
The passing of legislation to establish a National Anti-Corruption Commission (NACC) was welcomed by Australia Institute’s National Integrity Committee, a group of retired judges who have been advocating for a National Integrity Commission since the 2017 conference.
The National Integrity Committee congratulated the Parliament and, in particular, the Attorney-General on what this significant achievement. However, they criticised the legislation for the serious flaw in relation to public hearings.
“The National Anti-Corruption Commission is a testament to the work of Attorney-General Mark Dreyfus in conjunction with crossbenchers, including Helen Haines and her predecessor Cathy McGowan, and the Greens.
After five years of public debate and discussion, Australia will have a strong, independent integrity commission”
“With that said, the NACC should not be limited to holding public hearings in exceptional circumstances only, and we recommend that the Parliament revisit the commission once it is operational.”
Bill Browne, Director of the Australia Institute’s Democracy & Accountability Program.
The exceptional circumstances test has been opposed by Professor Anne Twomey, the honourable Robert Redlich, National Integrity Committee member and former Supreme Court Judge the Hon. David Harper AM, the Centre for Public Integrity, the Accountability Round Table, the Ethics Centre, the Governance Institute of Australia, Transparency International Australia, the Australian Human Rights Commission, and the Institute for Ethics, Governance and the Law.
If “exceptional circumstances” remains, it should be defined. The public deserves to know what circumstances justify the holding of a public hearing.
Whistleblower protections outdated, says Helen Haines, MP
“The NACC will have its own whistleblower scheme, yet it relies on the existing Public Interest Disclosure Act protections described as ‘‘technical, obtuse and intractable” in 2019 by a Federal Court judge.
I welcome the Attorney General’s commitment for priority reforms to this Act, to be in place before the NACC opens its doors in mid 2023.
This includes the key recommendations of the 2016 Moss Review. Yet these recommendations are already six years old.
The world has moved on. I will be watching closely to make sure these reforms are not frozen in time.”
Dr Helen Haines MP
Whistleblowers should not suffer because they tell the truth. But that’s what we see, time and again. We have a system of inadequate protections which leave people exposed, victimised and prosecuted when they should be celebrated for their bravery.
Senator David Pocock and Helen Haines launched a landmark report, Protecting Australia’s Whistleblowers: The Federal Roadmap, from Griffith University, the Human Rights Law Centre, and Transparency International Australia.
This report says Australia once led the world in protecting whistleblowers yet through the last two decades, have fallen way behind international best practice.
The report sets out 12 key areas of reform, including the establishment of an empowered and well-resourced Whistleblower Protection Commissioner to facilitate the effective implementation and enforcement of whistleblower protections.
Australia Institute’s National Integrity Committee
Australia Institute’s National Integrity Committee commended the work of Dr Helen Haines and her crossbench colleagues for their very valuable work with the Government in the drafting of the legislation and especially in their efforts to ensure the legislation meets the design principles necessary for an effective integrity commission.
Members of the Australia Institute’s National Integrity Committee include:
The Hon Mary Gaudron KC, former judge of the High Court of Australia;
The Hon Stephen Charles AO KC, former judge of the Victorian Court of Appeal;
The Hon David Harper AM KC, former judge of the Victorian Court of Appeal;
The Hon Paul Stein AM KC, former judge of the NSW Court of Appeal, former President of the Anti-Discrimination Board;
The Hon Anthony Whealy KC, former judge of the NSW Court of Appeal;
The Hon Margaret White AO, former judge of the Queensland Court of Appeal;
The Hon Carmel McLure AC KC, former President of the Western Australian Court of Appeal.
The 2017 Accountability & The Law Conference featured speakers:
politicians: Shadow Attorney General Mark Dreyfus QC; Greens Senator Richard Di Natale; Independent Senator Jacqui Lambie;
legal professionals: David Ipp AO QC; former NSW ICAC Commissioner; Nicholas Cowdery AM QC; Geoffrey Watson SC; George Williams AO; Bret Walker SC; Noel Hutley SC; Fiona McLeod SC; Anthony Whealy QC;
academics: Associate Professor Joo Cheong Tham; Associate Professor Gabrielle Appleby; Professor AJ Brown; Ben Oquist, Executive Director of The Australia Institute;
investigative journalists: Nick McKenzie, Linton Besser and Quentin Dempster.
The Australian Government now begins merit-based and transparent recruitment for Australia’s first National Anti-Corruption Commissioner to establish the National Anti-Corruption Commission in mid-2023.
“We are sent here to act with integrity, to uphold the dignity of public office, to execute our significant powers in good faith.
Yet, too often, this is not what the Australian people see.
Instead, they see public money spent for political gain. Marginal seats that get all the shiny infrastructure projects, while safe seats get nothing. Decisions that seem to benefit the interests of major donors over the interests of the community.
Sports rorts.
Car park rorts.
Leppington Triangle.
Helloworld.
Palladin.
Jobs for mates.
Pork barrelling.It is these scandals, and more, that are chipping away the trust Australians have in Government, in democracy, in all of us here in this place.”
Helen Haines, MP
People need to trust their Government and democratically elected politicians. Bad behaviour shouldn’t be swept under the rug. There are must consequences for people who act like they’re above the law.
