Speaking yesterday (Wednesday, 28 September) in Parliament, A-G Dreyfus said that the legislation “delivers the single biggest integrity reform seen [at a federal level] in decades”.

Details of the bill

The National Anti-Corruption Commission will operate independently of government and have broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector, the A-G said.

“It will have the power to investigate ministers, parliamentarians and their staff, statutory officer holders, employees of all government entities, and contractors. It will have discretion to commence inquiries on its own initiative or in response to referrals from anyone, including members of the public and whistle-blowers. Referrals can be anonymous. It will be able to investigate both criminal and non-criminal corrupt conduct, and conduct occurring before or after its establishment,” he outlined.

The commission will have a full suite of powers akin to that of a royal commission, A-G Dreyfus went on, enabling it to undertake preliminary inquiries using powers to compel the production of information.

This said, the A-G noted, the commission will hold public hearings only “in exceptional circumstances and if satisfied it is in the public interest to do so”.

“The default position is that hearings will be held in private,” he said.

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Following completion of investigations, the commission will have to produce reports containing findings and recommendations, and will have the ability to provide education and information about corrupt conduct.

The commission will be overseen by a parliamentary joint committee and an inspector, with appointees having limited terms “and security of tenure, during that term, comparable to a federal judge”.

There will also, A-G Dreyfus said, be appropriate safeguards against undue reputational damage and will provide protections for whistleblowers and journalists.

Limited public hearings

Responding to the release of the bill, the Centre for Public Integrity noted that the proposed legislation contains strong investigative powers, has broad jurisdiction and will be able to investigate retrospectively, but lacks the ability to properly expose corruption through public hearings and is limited in investigating third parties.

It is “unfortunate”, centre board director Geoffrey Watson SC noted, that the commission will limit public hearings.

“Public hearings bring new information forward that can be key to investigations. Importantly they increase public trust and expose corruption. This bill limits public hearings to cases involving exceptional circumstances — a term which is not defined and will be hard to prove,” he said.

“For example, in the Obeid inquiry, people came forward with information that contradicted important parts of the evidence that they heard in a public hearing. This was crucial in finding out the truth in this investigation.”

“The decision to hold public hearings will inevitably be challenged in court, which will both cause delays and mean that the commission’s information is given prematurely to those it is investigating. Furthermore, without a public hearing, the commission will not be able to report publicly,” Mr Watson pointed out.

Investigating third parties

His fellow centre board director, Stephen Charles KC, added that the bill put forward by A-G Dreyfus also lacks the necessary jurisdiction to properly investigate third parties.

“For example, companies colluding to corrupt a procurement process, or apply for a mining permit with false information, will not be covered by the bill in its current form,” he said.

“All state agencies, except WA and Tasmania, have this power to investigate third parties.”

“The Commonwealth bill would have one of the narrowest jurisdictions in the country if it is enacted without amendments,” Mr Charles identified.

However, despite this and the aforementioned concern about public hearings, centre member Michael Barker KC, determined the bill has “all the necessary investigative powers for an effective integrity commission”.

“We congratulate the government on swiftly tabling this bill which will increase public trust and allow for the investigation of corruption,” he submitted.

Law Council’s response

The Law Council of Australia also welcomed the introduced legislation, noting that it has, “for many years”, advocated for a national integrity commission.

“The Law Council has long recognised that corruption has many corrosive effects on society including to undermine democracy and the rule of law,” said LCA president Tass Liveris.

“The administrative and executive powers of the Commonwealth, along with national security and law enforcement powers, have expanded in recent years and therefore, it has never been more critical that we take decisive action to continuously strengthen our systems of integrity and independent oversight.”

Moreover, Mr Liveris continued, LCA is pleased to see that $262 million over four years for the establishment and ongoing operation of the commission has been pledged.

“It is essential that Parliament provides for proper scrutiny of the bill, including through the joint select committee inquiry process, and ensures that the Australian public has adequate opportunity to consider the bill and contribute to this process,” he said. 

“We look forward to working with the Parliament to ensure the final model for the National Anti-Corruption Commission is fit for purpose.”