Eminent jurist Stephen Charles witnessed the introduction of the legislation establishing the federal anti-corruption body NACC. He believes the incoming body is a welcome advance despite its flaws.
It was a rewarding moment to sit with other integrity advocates in the public gallery at Parliament House last week to see Attorney-General Mark Dreyfus introduce his bill for the creation of a National Anti-Corruption Commission (NACC). We have all worked for many years to try to bring to the federal government, which deals with the most power and money in the country, the same supervision that the state governments all face.
Helen Haines, the independent MP who has campaigned so strongly for such a body, was on the floor of the House of Representatives, as was the cross-bench for whom integrity is a key issue.
To introduce such a substantial bill into parliament only months after coming to office is a major achievement for Labor, and a triumph for the Attorney-General and his staff. The bill has been largely well received, although the flaws in the legislation have created some anxiety.
Smaller issues are the fact that the body will need a third more money than has been allocated over its first four years to do the job properly. The jurisdiction needs broadening. For example, the Attorney-General has kept the ability for the commission to deal with dishonest outsiders who aim to corrupt innocent public servants outside the body’s remit. He argues that the commission is likely to be swamped and this limit is to stop it capsizing. It is important, however, that this power be left to a commissioner to cover if necessary.
One design element that will become a problem, if not straight away, is that the legislation gives the government control of the parliamentary committee that supervises the NACC and holds the power to appoint the commissioner, the Inspector and to decide the budget. While the Attorney-General must trust his own government to act with integrity, he ought not to assume that any future government will.
The only substantial flaw
The only substantial flaw in the NACC’s design is the requirement for “exceptional circumstances” to be met in order to institute a public hearing in an investigation. This phrase comes from the Victorian IBAC where the commissioner is campaigning for it to be removed because it hampers the proper airing of corruption. In Victoria, only nine public hearings were held from 2013 to 2020. In the same timeframe, the NSW ICAC held 42. These were only 25% of the hearings it conducted, with the other 75% having taken place in private.
Public hearings take place only after lengthy private investigation which establishes there is a public interest. The benefits of the hearing being open are that the community can see the important work done to limit misbehaviour in government. New witnesses are alerted to the fact of the investigation, and politicians and public servants, not to mention the businesses that work with them, learn where the line is drawn.
In the NACC legislation, there are currently five sub-clauses which the commissioner may consider before deciding to hold a public hearing. These include unfair prejudice to a person’s reputation, and whether their privacy, safety or wellbeing would be harmed. These measures already give the commissioner important guidelines to protect the wellbeing of the target of investigation if necessary.
The clumsy insertion of the “exceptional circumstances” clause at the last minute sits uncomfortably with these protections. It invites wealthy litigants to challenge in court a public hearing, as not involving circumstances that are “exceptional”. It is possible for this process to delay the hearing by as much as two years as appeals take their course. In the process of testing the “exceptional” nature of the accusations, the commission will have to lay out its evidence, giving the investigation’s target an unreasonable advantage to skew the course of justice.
It is common practice for royal commissions to take place in public. For example, the Hayne royal commission into banking matters took place entirely in public; so also, the Fitzgerald Inquiry. Under Commonwealth legislation, federal judges, even of the High Court, may be examined in public. It seems that only politicians are to be entitled to such secrecy – and only a parliament can establish an integrity body such as the NACC with all the necessary additional powers that are not available to police and the ordinary security services. In this context, it was Justice Brandeis of the US Supreme Court who said: “Sunlight is the best disinfectant.”
There has been some discussion also about retrospectivity. The NACC will function just as a police force does, usually investigating crimes (and other corruption) that have already taken place. While there may be grants or programs which are still spending taxpayers’ money improperly, it is appropriate that the commission should investigate them if it chooses to do so.
Pork-barrelling is against public interest
Some argue that pork-barrelling is political business as usual. In the last two elections, we have seen many billions of dollars spent on programs around the country that have not followed the application and selection guidelines, where they even existed. Community organisations that made substantial effort to apply were robbed of the funds they needed, while other bodies gained funds where the primary purpose was to affect the electoral outcome. The High Court has settled that the executive is not entitled to spend taxpayers’ money other than in the interests of the whole community.
Where power aggregates, so too does corruption. The fact that the Attorney-General’s office is planning the NACC to be part of an integrity framework that tackles the problems much more thoroughly is to be applauded. Preventative measures as well as reactive ones are crucial to ensuring that the federal government functions as closely as possible in the best interests of the community, with the greatest integrity in allocating the Commonwealth’s resources.
After a distinguished career at the Victorian Bar and as a Judge of Appeal in the Supreme Court of Victoria, Stephen Charles AO, QC, is now a board member of the Accountable Round Table and the Centre for Public Integrity. He has been for many years a tireless advocate for the creation of a federal anti-corruption watchdog.