24th Nov 2022, 12:24 PM – Representatives National Anti-Corruption Commission Bill 2022 - Consideration in Detail - Legal professional privilege and timing

The majority voted in favour of a motion to disagree with amendments (3) to (7) introduced by Warringah MP Zali Steggall (Independent), which means they failed.

What did the amendment do?

Ms Steggall explained that:

Amendment (5) relates to setting a deadline for the tabling of reports from inquiries. Section 149 of the bill requires a commissioner to prepare a report on an investigation, and section 154 requires him or her to give a report to certain persons but provides no time frame in which that report should be provided. Parties subject to an investigation should have certainty around when a report will be released. This is so we don't have a situation such as the current one in New South Wales with the investigation into Gladys Berejiklian, where the report's release keeps getting delayed with no clear explanation, creating uncertainty for all sides. My proposal is that the report should be tabled within a year of the completion of public hearings or, where public hearings were not held, within a year of the last private hearing. This amendment will also require the tabling of reports to parliament to improve the transparency and accountability of the commission.

Amendments (6) and (7) set a deadline for the opportunity to respond to findings. Section 157 of the bill provides for the opportunity for any persons who have an adverse finding against them in a report to have a reasonable opportunity to respond. I believe this should be replaced with a fixed time frame in which to respond. The amendment proposes changing a reasonable opportunity to three months or such longer period as determined by the commissioner. Again, it is all about trying to provide a timeliness framework to investigations and reporting so that we don't have parties with deep pockets and an ability to bring on successive challenges in the legal sense that would delay the provision of reports. It is also because it can be politicised—we know this—and reports left without a specific time frame means they can be delayed purposefully or from an unintended consequence relating to when elections and other issues might be arising.

Amendments (3) and (4) relate to changing the threshold for the use of legal professional privilege so it cannot be so easily abused to avoid public hearings. The commissioner should have discretion in deciding whether or not to hear private evidence that may disclose legal advice or a communication protected by legal professional privilege. I agree with the Centre for Public Integrity to make this mandatory. The current legislation says it 'must be private in all circumstances', so to make it mandatory would be to leave it open to well-funded litigants to exploit this right, with the effect of delaying or disrupting the commission's work.

Read more about the bill in its bills digest.

Amendment text

(3) Clause 74, page 69 (lines 16 and 17), omit subparagraph (b)(ii).

(4) Page 69 (after line 21), after clause 74, insert:

74A Evidence involving legal professional privilege

The Commissioner may determine that evidence is to be given in private if giving the evidence would disclose a communication that is protected against disclosure by legal professional privilege.

(5) Clause 149, page 122 (after line 6), after subclause (1), insert:

(1A) The investigation report must be completed and tabled in each House of the Parliament as soon as practicable, and in any event within 12 months, after:

(a) if any public hearings are held in the course of the corruption investigation—the conclusion of the last public hearing that is held; or

(b) otherwise—the conclusion of the last hearing that is held in the course of the corruption investigation.

(6) Clause 155, page 128 (lines 5 to 7), omit all the words from and including "must" to the end of the clause, substitute:

must, within 14 days after receiving the report:

(c) table the report in each House of the Parliament; or

(d) if a House is not sitting—present the report to the Presiding Officer of that House for circulation to the members of that House.

(7) Clause 157, page 128 (line 32), omit "a reasonable opportunity", substitute "the period of 3 months, or such longer period as is determined by the Commissioner,".