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Rex Patrick: “exceptional circumstances” choke National Anti-Corruption Commission

by Rex Patrick | Nov 28, 2022 | Government, Latest Posts

Labor may rue the day it mired the National Anti-Corruption Commission (NACC) in secrecy. Transparency warrior Rex Patrick reports on the “exceptional circumstances” provision which weakens corruption watchdog.

Having passed through the House of Representatives last week, the Senate is set to debate and pass Albanese’s National Anti-Corruption Commission (NACC) legislation this week. It won’t be short leashed, blind, toothless, limping corruption watchdog
that Morrison was reluctantly proposing, but it will be a watchdog with only one ear and it will rarely be seen without its kennel.

On September, 28 when Attorney-General Mark Dreyfus dropped the Labor Party’s NACC legislation into the Parliament, it contained a big surprise to most. It was to have public hearings, but only in “exceptional circumstances”.

The legislation did not define what “exceptional circumstances” were and so for the past two months we’ve had former judges, academics, departmental officials and politicians trying to figure out its legal meaning.

One thing’s for sure, despite Dreyfus trying to make everyone feel that like it’s not a restrictive term, he’s used similar wording in relation to exercising of power drop prosecutions of whistleblower. When, under pressure from Timor-Leste, he dropped the prosecution of Bernard Collaery, he said it was “an exceptional case”.

But he’s used the same term to leave whistleblowers Richard Boyle and David McBride hung out to dry.

Exceptionally important to have open hearings

Public hearings, assuming a prima facie case of serious or systemic corruption exists and that they won’t jeopardise a person’s safety or prejudice potential criminal proceedings, are really important.

Open hearings allow the public to see the allegations being investigated, the evidence, the counterfactuals, and most importantly, the conduct of counsel assisting and the Corruption Commissioner him or herself. They allow the public to be the scrutineers. On the contrary, hearings shrouded in secrecy undermine the public’s confidence in the Commission and any findings and reports it may make.

They also assist in flushing out further instances of what’s happening, or further evidence. If people observing public hearings realise that issues are being fully explored by a commission, they are more likely to come forward or be more willing to cooperate. There is no shortage of examples of this happening with state anti-corruption commissions, especially ICAC in New South Wales.

SNACC or NACC? What will be made public by the new anti-corruption commission?

As NSW ICAC Chief Commissioner, John Hatzistergos, testified to the Parliamentaryinquiry: “We’ve had investigations which have commenced in public, and as a result of that information other people have come forward and we’ve been able to going to other areas which have raised significant issues of corruption”.

Finally, public hearings help to inform and educate the public, public servants, politicians and institutions by reinforcing the rules by which public administration must be conducted.

Moreover, the fact that “exceptional circumstances” is not defined in the legislation will also create the possibility that a corrupt person with deep pockets will most likely challenge any decision by the commission to hold a public hearing, even if only to create a delay to stop proceedings for the long period it might take to queue at the court.

The anti-corruption failed state

South Australia’s Independent Commission Against Corruption has recently been the subject of controversy that centred around, amongst other things, a lack of procedural fairness in its operations and an environment of total secrecy.

The South Australian Commission never conducted public hearings. No-one got to see or question what the Commission was doing. A number of changes were made to the ICAC legislation last year to remedy some of the faults, but that did not include public hearings.

South Australia will remain the failed anti-corruption state until such time as it does.

Reputation damage?

The major argument being deployed against public hearings is that they can cause reputation damage to politicians or public officials.

But the argument tries to cast politicians and public officials as a special class of people. Courts, whose proceeding may harm the reputation of defendants, only close their hearings in exceptional circumstances. Royal Commissions usually proceed with public hearing unless there are compelling reasons for confidentiality.

Section 23 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act requires the hearings into the investigation of judges alleged to be guilty of misconduct to be public.

If it’s important enough for allegations against members of the public, issues under investigation by a Royal Commissioner to be heard in public and allegations of misconduct by judges to heard in public, why not for officials and politicians?

And retired Victorian Supreme Court Justice the Hon David Harper AM testified to the Parliament,

“The fact is that, of the three key public figures who have been subjected to the publicity of an ICAC investigation – Mr Greiner, Mr O’Farrell and Ms Berejiklian – all have moved on, and you couldn’t say of any of them that their careers have been damaged by their experience with ICAC.

Mr Greiner is a respected businessman, Mr O’Farrell is our High Commissioner to India and Ms Berejiklian is now on the board of Optus. Those are three examples, I think, that illustrate that a public hearing, frankly, does not necessarily result in public opprobrium and, indeed, may be the means by which an innocent person has his or her innocence brought to the public’s attention in a way that
couldn’t otherwise be done.”

A political fix

The decision to include the exceptional circumstances test in the legislation was not one that originated within the Attorney General’s Department. In October I used Freedom of Information laws to request of the Attorney-General’s Department “any document or documents that explain the policy/rationale for including the term ‘exceptional circumstances’ in the legislation for the proposed
National Anti-Corruption Commission, in relation to whether hearings are open or closed.”

Their response:

“… the documents do not exist within the department’s records holdings”. The decision to limit NACC public hearings was a political, not policy based, decision. And it was exclusively a decision of the Labor Government.

Labor did not need to appease the Liberal Party. Labor controls the numbers in the House, but it is worth noting that a number of non-Labor MP voted for Helen Haines amendment to remove the ‘exceptional circumstances’ threshold, including Kate Chaney Zoe Daniels, Bob Katter, Monique Ryan, Sophie Scamps, Allegra Spender, Zali Steggall, Kylea Tink, Andrew Wilkie, the Greens and even the Liberal’s Bridget Archer.

They also have the numbers in the Senate. With the Greens and at least three cross benchers onboard, a Bill without an ‘exceptional circumstances’ threshold would sail through.

Senators Jacqui Lambie, Tammy Tyrrell and David Pocock have a joint amendment to kill off the threshold. It won’t get up, because the Liberals will vote with Labor to ensure public hearings are the exception rather that the rule.

Labor has diminished the NACC. Labor has set up a NACC which will likely not end up enjoying the confidence of Australians. And they have done so in their own political self interest because, knowing the fallibility of their own team, they fear an integrity commission that can put a public spotlight on corruption.

When the final vote comes in the Senate, like what occurred in the House, the Bill will pass on the voices. Everyone wants a NACC of some form.

Zali Steggall summarised the situation well: “It’s a good bill but not a great bill, and it is one that may well fail to deliver what Australians so clearly want: a return to transparency, accountability and integrity in Australian politics.”

One thing’s for sure, this question isn’t going to go away. Labor will install a much-needed guard dog. It might well chew, but it won’t bark and it’s not properly up to the job.

Human nature and politics being what they are, it’s almost inevitable that at some time in the future one of Federal Labor’s own will be mired in allegations of corruption.

When that happens, secrecy usually magnifies the political damage and Labor may well rue the day they decided against transparency.

Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.

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