National anti-corruption commission: Bar too high for public hearings, say critics

Attorney-General Mark Dreyfus.

Attorney-General Mark Dreyfus. Photo: AAP

Australia risks establishing a national anti-corruption commission that’s too weak to effectively expose wrongdoing unless plans to restrict public hearings are axed, a parliamentary committee has heard.

The Albanese government is facing criticism from legal experts that its proposed NACC has set the bar for public hearings too high by requiring they only be held in “exceptional circumstances”.

Under a model proposed by Attorney-General Mark Dreyfus, the NACC’s commissioner would also consider reputational risks to accused parties.

Mr Dreyfus argues this “strikes the right balance”, but advocates warned on Tuesday it risks pushing the NACC’s work behind closed doors and could even inspire legal challenges from officials accused of corruption.

Centre for Public Integrity board member and retired judge Stephen Charles warned the exceptional circumstances test will “dramatically reduce public hearings”.

“Public hearings are essential to the role that integrity commissions are being created to carry out,” he told the joint parliamentary committee.

The Centre for Public Integrity surveyed current and former leaders at state-based anti-corruption bodies for a submission to the committee, and found universal agreement that the current test is “inappropriate”.

Experts fear the test would make the federal ICAC weaker than leading anti-corruption commissions in New South Wales and Queensland, while opening the door for legal challenges if a commissioner does hold public hearings.

Commissioner not required to publish reports

The Accountability Round Table, an advocacy body comprised of lawyers and former politicians, said the exceptional circumstances test wasn’t consistent with the NACC principles Labor outlined before the election.

“The requirements of exceptional circumstances will be a severely restricting factor on the NACC public hearings,” it said in a submission.

“Not only is the phrase ambiguous, it will provide an avenue for well-funded objects of an investigation to take court proceedings to stop a public hearing, but investigations will be long-delayed and made less effective in consequence.”

The Attorney-General’s department deputy secretary Sarah Chidgey told the parliamentary hearings on Tuesday that Mr Dreyfus requested that the “exceptional circumstances” test be included in the draft legislation, but rejected that it was a deviation from the government’s earlier promises.

Under questioning from Greens Senator David Shoebridge, Ms Chidgey also confirmed that the proposed NACC wouldn’t be required to publish a public report into a corruption finding if public hearings didn’t happen.

“We would expect if there is a finding of serious or systemic corruption that would then be in the public interest and the commissioner would  publish,” Ms Chidgey said.

Whistleblower protections missing

Appearing before the hearings on Tuesday, Human Rights Law Centre senior lawyer Kieran Pender also outlined fears that the NACC’s work could be hampered by inadequate legal protections for whistleblowers.

He argued current laws don’t grant whistleblowers enough protection from retribution when they expose corrupt conduct, and advocated for the establishment of a whistleblower protection commissioner, either within the NACC, or separate but adjacent to one.

“The NACC bill in its current form is a missed opportunity when it comes to whistleblower protection,” Mr Pender told the joint committee.

“And that will significantly hamper the effective operation of the NACC. To be effective, the NACC will be reliant on individuals who are aware of corrupt conduct speaking up,” he said.

“Unless the NACC can foster trust and confidence among such individuals that they will be protected and empowered in speaking up, they will remain silent.”

The NACC committee hearings continue on Wednesday.

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