The government’s proposed national anti-corruption commission (NACC) will be required to hold hearings in private unless it believes there are exceptional circumstances and it is in the public interest to hold open hearings — similar to the much-criticised limitation on Victoria’s hamstrung Independent Broad-based Anti-Corruption Commission (IBAC).
However, the “exceptional circumstances” requirement will be noticeably easier to meet than in Victoria — though not as easily as for the NSW Independent Commission Against Corruption.
The public nature of hearings by the new body is the remaining point of major contention over Labor’s planned body, given the Coalition believes any public hearings are “show trials”, and with integrity advocates, the Greens and the crossbenches insisting there must be the option for open hearings.
Section 73 of the NACC bill, introduced into Parliament this morning, requires that:
(1) A hearing must be held in private, unless the commissioner decides to hold the hearing, or part of the hearing, in public.
(2) The commissioner may decide to hold a hearing, or part of a hearing, in public if the commissioner is satisfied that:
(a) exceptional circumstances justify holding the hearing, or the part of the hearing, in public; and
(b) it is in the public interest to do so
There’s a non-exhaustive list of what the commission may take into account in determining if a hearing be public: the extent to which serious or systemic corruption is involved; confidentiality of information; the commission of a criminal offence; the possibility of unfair prejudice to someone’s reputation, privacy, safety or wellbeing; and the benefits of exposing corrupt conduct to the public.
While in some ways mirroring the IBAC legislation, the Victorian law creates a high hurdle to overcome before IBAC can conduct hearings in public. Section 117 of the IBAC act requires IBAC to meet a series of tests before a hearing is opened to the public: not just exceptional circumstances and a public interest test as per the federal model but a serious or systemic test, a requirement that it only be held in public if it won’t cause unreasonable damage to a person’s reputation, safety or wellbeing, and only if it won’t reveal a whistleblower.
None of those additional requirements, inserted by Victorian politicians to limit the possibility of embarrassing exposure by IBAC, applies to the NACC.
However, the NSW ICAC model is much more relaxed still — the ICAC legislation makes clear ICAC “may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry”, although there’s a non-exhaustive list of factors ICAC may consider in deciding.
Around 4% of ICAC’s hearings are conducted in public — much higher than IBAC’s, but plainly still relatively limited. The thrust of the NACC bill is to leave the issue in the hands of the commission, NSW-style, rather than impose a series of hurdles, Victorian-style. Labor will be hoping that’s enough to get it through the Senate, but integrity experts will be poring over the bill with an eye on submissions to the forthcoming joint parliamentary inquiry into the bill.
The approach to the threshold of conduct that can be investigated is left to the commission as well: commissioners will decide if corrupt conduct is “serious or systemic”. The conduct defined as corrupt is expansive: under section 8, corrupt conduct is any conduct by anyone that adversely affects directly or indirectly the honest or impartial exercise of any public official’s powers, functions or duties as a public official; a public official breaching public trust; abuse of office; misuse of information; or corruption of any other kind.
Unlike the Coalition’s toothless mode, the NACC will be able to take corruption complaints from anyone at all, and will be completely unrestricted in whether it decides to initiate its own investigations, even without a complaint. There may be some hesitation over not having as open a process as the NSW ICAC, but Labor’s anti-corruption model will be a massive step forward in terms of integrity.
The comparison is telling. Unsurprisingly, Albanese agrees with Dutton and ignores the Greens and Teals, so the Morrison lite Labor government plods along, doing a bare minimum thereby hoping to win the next election, so they can do the bare minimum then. But this latest failure highlights the hypocrisy of the major politicians.
They are worried that a public enquiry might tarnish the carefully curated images they have developed. But what about the hundreds of thousands of Australians whose lives continue to be shattered, harmed, or ended because the politicians and their business supporters hide behind a veil of secrecy, who cannot be sued because they make the laws that enable them to be protected.
Each day the new leader of the Monarchy Movement pretends he is the face of intelligent Australians, who adheres to law, but will he honour the findings of the UN Court this week, or act to prevent children being held in prison in a manner that meets the criteria of torture, I could go on, but the list is too long. Fig leaves have a very short life span.
We could accept the small target strategy to get elected (actually many thought anyone was better than Morrison) but when the government sides with the LNP to allow Hanson to continue her racist tirades against fellow Senators, we must start asking ourselves, “what is the point of having a government that has more in common with the likes of Morrison, Taylor, Dutton and Hanson, than MPs who believe in having an actual democracy and honouring science and treating all Australians as equals and with dignity?”
It is probably the case that, if the last election result was different, the pressure to pass an Integrity Commission was so great that we would have one sooner rather than later. It would not have been able to shine a light on deplorable behaviour, but neither will this one unless the Commissioners are prepared to stand up to the government.
Hanson’s tirade against Senator Faruqi was really sickening but it is also becoming clear that Hanson cannot complete a sentence unless she is reading from a script. She appears to not be well in the head and does not look well overall and maybe Labor knows something that leads them to refrain? There is no evidence that the government is ignoring the “Greens and Teals”. However if your measure is that the Albanese government is not adopting all of the Greens or all of the crossbench proposals then guess you’re right but that is not what these people are saying themselves.
The government is at least polite to the Teal independents and perhaps respectful, though that does not matter in the end because Labor has a majority in the lower house where they all sit and Labor can afford to ignore them all. However, it is long-standing Labor policy, reflecting a deep and visceral animosity, to have nothing to do with the Greens if there is any alternative at all and there is no evidence it has abandoned that stance. Labor’s ‘take it or leave it’ refusal to negotiate anything with the Greens on its carbon emissions target shows how Labor intends to treat the Greens in the Senate.
I’m a green communist but I can see that negotiating with the Greens is the easy but irrelevant part so best avoided. Negotiating within the greens is the insurmountable challenge of our age.
Helen Haines was asked, on RN this evening, what she thought of the slop that has been served up via Opposition support, said “I try to be polite.”
This approach to public hearings sounds reasonable to me. If only 4% of ICAC hearings are public then it would appear that they’re ‘exceptional’, so having exceptional as a requirement would not be restrictive. We’re not talking about a court here, where cases are only brought if the police have evidence that a law has been broken. If the NACC receives a potentially significant but vague allegation of corrupt activity, you’d want it to be able to launch some kind of investigation, possibly involving hearings, without opening it up immediately to an audience of journalists. Once the allegation has got legs, then make it public. A lot will depend upon the commissioner, I guess. Gillian Triggs?
Agreed, Don.
Why are public hearings disparagingly referred to as ‘show trials’?
Unless these hearings are accessible to the people funding them (aka taxpayers) they will be regarded as compromised.
Because it’s bound to go after the LNP
Of course if it’s Labor they’d be all for the so called ‘show trials”
And of course, there is no chance of there being corruption or malfeasance on the Labor side…
Not covering backsides at all.
The ‘show trial’ line is used because it serves a purpose, which you have identified – it disparages public hearings, which is useful to those who fear them. Presumably there are enough people who have little or no idea what a real show trial looks like to make it an effective attack. For example, how many in the Australian public today know much detail about the show trials of the old Bolsheviks held in the USSR in the 1930s? That’s the way to do it! Arthur Koestler’s superb novel Darkness at Noon from 1940 illustrates how it works very well.
The extremely over-used and almost always abused phrase ‘witch-hunt’ is very similar. Leaving aside actual witch hunts, even the modern equivalents such as the McCarthyite purges in the USA in the 1950s are no longer familiar.
I think they’re only “show trials” if those in the stocks are “of the Coalition”?
If the corruption is “systemic” it is surely not “exceptional”. So no public hearings.
The deeper and more pervasive the rot becomes in federal government, the less we will see. Once it is routine, and it already looks that way, nothing will ever be revealed. Brilliant!
Tend to agree SSR; my cynical measure of acceptibilty is if the opposition don’t oppose the bill. I believe we’ve been sold a pup!
On Wednesday’s RN, try though she would, PK could not extract any sound reason from ‘Health Minister’ Mark Bumbler as to which ‘special circumstances’ would allow open, public hearings.
He even tried Scummo’s line about ‘protecting reputations’.
Sheeesh, why does anyone think FICAC, if not stillborn, will ever achieve anything?
I would like the Commission to determine which hearings should be public without any restrictions placed on it by the legislation.
I don’t buy this argument that good people will be put off politics if hearings are public. I think it is likely that more good people would be interested in politics if they were confident that they were working in a Parliament dominated by ethical, intelligent and capable people. And, of course, fewer potential crooks would be involved if the risk of their activities was made public.
Who wouldn’t want to work with more Helen Haines and Andrew Wilkies and fewer … well, nobody needs me to name them?