Attorney general Mark Dreyfus introduced legislation into federal parliament on 28 September to establish the fabled anticorruption watchdog, which Coalition leader Peter Dutton has indicated his party will likely support, after it dragged its feet on the issue during the Morrison years.
In many ways, the National Anti-Corruption Commission Bill 2022 ticks all the boxes, as it provides for an independent agency that will investigate criminal and noncriminal cases, including third-party involvement, its powers are retrospective and it provides whistleblower protection.
The NACC “will operate independently of government and have broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector”, the AG said in his second reading speech, adding that all staff, employees and contractors will come under its scope.
Yet, there’s a major bone of contention, especially for crossbenchers who were the parliamentarians calling out loudest for such a watchdog, and that’s the default position for the NACC being closed doors proceedings, unless an undefined “exceptional circumstances” is found.
Behind closed doors
“There are a number of quite disturbing elements to the bill that will limit the capacity of the commission,” Australian Greens Senator David Shoebridge told Sydney Criminal Lawyers.
“The biggest sticking point at the moment is the last-minute limitation on public hearings except where the commission finds exceptional circumstances and public interest,” he continued. “That has all the hallmarks of a last-ditch deal between the Coalition and Labor to try to get Coalition support.”
However, the Greens justice spokesperson stressed that there “are a number of really positive elements” to the anticorruption watchdog legislation, which are a direct result of recent negotiations between his party, the rest of the crossbench and Labor.
Shoebridge highlighted that the breadth of the body’s jurisdiction and the provision of adequate funding, “at least for the first year”, as two key desirable aspects.
And the bill has now been sent to the Joint Select Committee on National Anti-Corruption Commission Legislation to deliberate upon. The committee, of which Shoebridge is a member, will be reporting back by 10 November.
On the decision to make closed proceedings the NACC default, Shoebridge added, its “consistent with those two parties working together to protect themselves from serious scrutiny.”
“This is the club joining ranks to defend themselves, however if we can’t reverse it during the inquiry, it will come with a cost of the efficacy of the integrity commission.”
Australian Greens Senator David Shoebridge
The national security card
One key matter that commentators have been citing as deserving an official NACC investigation is the 2004 bugging of the Timor-Leste offices by the Howard government, so that our nation could gain the upper hand in oil and gas treaty negotiations.
Indeed, the Alliance Against Political Prosecutors recently wrote to Dreyfus concerning the documents relating to the now dropped prosecution of ACT barrister Bernard Collaery, which was being pursued due to his part in having exposed the government crime.
AAPP suggested to the attorney general that the documentation must be kept securely in case a body like the NACC sought to investigate the ASIS surveillance of the government administrating what was one of the globe’s most impoverished nations at the time.
But Dreyfus replied that the documents would never make it to such a body, as they’re protected from disclosure under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), hence pointing to another key issue relating to the reach of the NACC.
According to Shoebridge, the raising of national security interests to block corruption inquiries is a major concern, especially when it comes to “contractual overspend” in relation to the “unhealthy relationship” between government and private interests that is the defence sector.
“The NACC needs to have the jurisdiction to investigate that in full, and with that should come the jurisdiction to look at other matters that will affect the national interests,” the senator concluded, “such as unlawful bugging and interference by the Australian government with foreign nations.”