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representatives vote 2022-11-24#2
Edited by
mackay staff
on
2022-11-25 13:17:32
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Title
Bills — National Anti-Corruption Commission Bill 2022; Consideration in Detail- National Anti-Corruption Commission Bill 2022 - Consideration in Detail - Exceptional circumstances definition
Description
<p class="speaker">Helen Haines</p><p>by leave—I move amendment (7) as circulated in my name.</p>-
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/debate/?id=2022-11-24.24.4) to *disagree* with [amendment (7)](https://www.openaustralia.org.au/debate/?id=2022-11-24.21.1) introduced by Indi MP [Helen Haines](https://theyvoteforyou.org.au/people/representatives/indi/helen_haines) (Independent), which means it failed.
- #### Rebellion
- Bass MP [Bridget Archer](https://theyvoteforyou.org.au/people/representatives/bass/bridget_archer) (Liberal) [crossed the floor](https://theyvoteforyou.org.au/help/faq#rebel) to vote "No" against the rest of the Liberal party, who voted "Yes".
- ### What did the amendment do?
- Dr Haines [explained that](https://www.openaustralia.org.au/debate/?id=2022-11-24.21.1):
- > *If exceptional circumstances is to remain in this bill, it should be defined. The public deserves to know what circumstances justify the holding of a public hearing. My amendment will define 'exceptional circumstances' to mean 'circumstances where it is preferable or appropriate for evidence to be heard in public'. This will ensure the number of private hearings are not unreasonably increased due to the ambiguity of the phrase.*
- Read more about the bill in its [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd035).
- ### Amendment text
- > *(7) Clause 73, page 69 (after line 10), at the end of the clause, add:*
- >
- >> *Meaning of exceptional circumstances*
- >>
- >> *(6) For the purposes of paragraph (2)(a), exceptional circumstances means circumstances in which it is preferable or appropriate for evidence to be given in public.*
<p class="italic">(1) Clause 8, page 14 (after line 20), after paragraph (1)(d), insert:</p><p class="italic">(da) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes;</p><p class="italic">(2) Clause 8, page 14 (after line 23), after subclause (1), insert:</p><p class="italic">(1A) <i>Corrupt conduct</i> is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:</p><p class="italic">(a) collusive tendering;</p><p class="italic">(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;</p><p class="italic">(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;</p><p class="italic">(d) defrauding the public revenue;</p><p class="italic">(e) fraudulently obtaining or retaining employment or appointment as a public official.</p><p class="italic">(3) Clause 8, page 14 (line 24), omit "does not", substitute "and subsection (1A) do not".</p><p class="italic">(4) Clause 8, page 15 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".</p><p class="italic">(5) Clause 73, page 68 (lines 10 to 14), omit subclause (2), substitute:</p><p class="italic">(2) The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that it is in the public interest to do so.</p><p class="italic">(6) Clause 73, page 68 (line 16), omit "may", substitute "must".</p><p class="italic">(7) Clause 73, page 69 (after line 10), at the end of the clause, add:</p><p class="italic"> <i>Meaning of </i> <i>exceptional circumstances</i></p><p class="italic">(6) For the purposes of paragraph (2)(a), <i>exceptional circumstances</i> means circumstances in which it is preferable or appropriate for evidence to be given in public.</p><p class="italic">(8) Clause 177, page 144 (line 19), before "to review", insert "at least once every 12 months,".</p><p class="italic">(9) Clause 177, page 144 (after line 30), after subclause (2), insert:</p><p class="italic">(2A) If:</p><p class="italic">(a) in a report mentioned in paragraph (1)(g), the Committee makes a recommendation in relation to the NACC's finances and resources; and</p><p class="italic">(b) the Minister decides not to follow the recommendation;</p><p class="italic">then:</p><p class="italic">(c) the Minister must prepare a written statement of reasons for the decision not to follow the recommendation; and</p><p class="italic">(d) the Minister must cause a copy of the statement of reasons to be tabled in each House of the Parliament within 15 sittings days of that House after making the decision.</p><p class="italic">(10) Clause 178, page 146 (after line 17), after subclause (2), insert:</p><p class="italic">(2A) The decision to approve or reject a proposed recommendation is to be determined by a majority of all of the members of the Committee for the time being holding office. The majority must include:</p><p class="italic">(a) at least 2 Government members; and</p><p class="italic">(b) at least 2 non-Government members.</p><p class="italic">(11) Clause 178, page 146 (after line 17), after subclause (2), insert:</p><p class="italic">(2A) The decision to approve a proposed recommendation must be supported by at least a two-thirds majority of all of the members of the Committee for the time being holding office.</p><p class="italic">(2B) Paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.</p><p>If exceptional circumstances is to remain in this bill, it should be defined. The public deserves to know what circumstances justify the holding of a public hearing. My amendment will define 'exceptional circumstances' to mean 'circumstances where it is preferable or appropriate for evidence to be heard in public'. This will ensure the number of private hearings are not unreasonably increased due to the ambiguity of the phrase. This remedy was supported by the Australian Federal Police Association, the Community and Public Sector Union and Transparency International Australia. This aims to limit litigation on the meaning of the phrase and would ensure that the number private hearings are not unreasonably increased due to the ambiguity of the phrase 'exceptional circumstances'.</p><p>I think it's really clear that those of us on the crossbench, my colleague from the coalition and the general public have incredible concern around the exceptional circumstances clause. I've just lost the division on the removal of the exceptional circumstances clause, but we have a second chance here to make sure that, if this is going to stay, we know exactly what it means. I would urge members of the House to think about that. It's a very sensible, very easy amendment to make, and it removes the ambiguity. I urge members of the House to have a look at that and think about this carefully. You can rescue the decision you just made by being clearer about this part.</p><p>I commend this amendment, and I ask that colleagues across the House look at this carefully and make sure that they're on the right side of history here—that we make it clear both to the commissioner and, importantly, to the public what we mean by 'exceptional circumstances'.</p> <p class="speaker">Zali Steggall</p><p>I'd like to support this amendment because it is clear that 'exceptional circumstances' is misunderstood, and, without definition, it raises great concerns. We know from the submission from the Victorian IBAC that it is about exceptional circumstances above and beyond the normal mill of integrity and anticorruption issues. So just what will qualify as exceptional circumstances?</p><p>Interestingly enough, I watched the Attorney-General with Sarah Ferguson on <i>7.30</i> recently, and she put it to him very specifically: 'What will be exceptional circumstances?' With respect, he dodged the question, saying he 'will leave that to the commissioner to determine', because, I would say, it's not clear in the government's mind what will be the exceptional circumstances. It leads to an inference that it's such a high bar that, in fact, there is an unwillingness to actually say just what will be exceptional circumstances. It undermines this legislation. I think, for the public to genuinely have confidence that we have the best possible National Anti-Corruption Commission, if we're going to keep a test of 'exceptional circumstances', it does need definition.</p> <p class="speaker">Andrew Wilkie</p><p>Let's clear this up right now. Through you, Speaker, I put the question to the Attorney-General. Attorney-General, please tell us what your understanding is of 'exceptional circumstances'?</p> <p class="speaker">Mark Dreyfus</p><p>I would again thank the member for Indi for her constructive engagement on this legislation. As I have said previously, this matter of 'exceptional circumstances' is certainly a matter on which reasonable minds can differ. The commissioner will have the discretion to hold public hearings, if they are satisfied that it is in the public interest and exceptional circumstances justify doing so. It's the government's view that this is an appropriate threshold which reflects the significant nature of the power to compel a person to answer questions at a public hearing. It reflects the sensitivities involved in holding public hearings—for example, the risk of prejudicing a future criminal investigation or trial. And it reflects the issues of reputational harm which may arise. It's appropriate that this discretion rests with the commissioner. The government doesn't support this amendment.</p><p>I just want to answer a comment that was made by the member for Wentworth. In her earlier remarks about public hearings, she quoted the late David Ipp, who provided such service to the people of New South Wales as the ICAC commissioner. It's very important that everybody understands that the bill does not ban public hearings. The comments of the late David Ipp that the member for Wentworth quoted were about whether or not to hold public hearings at all. The former government's proposal was not to hold public hearings at all. To the contrary, this bill leaves that question to the discretion of the commissioner.</p> <p class="speaker">Milton Dick</p><p>The question is that amendment (7), moved in the name of the member for Indi, be disagreed to.</p><p></p><p></p> -
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