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representatives vote 2022-11-24#8
Edited by
mackay staff
on
2022-11-25 15:38:49
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Title
Bills — National Anti-Corruption Commission Bill 2022; Consideration in Detail- National Anti-Corruption Commission Bill 2022 - Consideration in Detail - Legal professional privilege and timing
Description
<p class="speaker">Dai Le</p><p> () (): I would like to thank the Attorney-General for his comments and for making clear the government's position. I am disappointed and, as I said—</p>-
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/debate/?id=2022-11-24.58.7) to *disagree* with [amendments (3) to (7)](https://www.openaustralia.org.au/debate/?id=2022-11-24.56.1) introduced by Warringah MP [Zali Steggall](https://theyvoteforyou.org.au/people/representatives/warringah/zali_steggall) (Independent), which means they failed.
- ### What did the amendment do?
- Ms Steggall [explained that](https://www.openaustralia.org.au/debate/?id=2022-11-24.56.1):
- > *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](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd035).
- ### 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,".*
<p class="speaker">Milton Dick</p><p>The member will resume her seat. The time for the debate for your amendments has concluded.</p> <p class="speaker">Zali Steggall</p><p>by leave—I move amendments (3), (4), (5), (6) and (7) as circulated in my name together.</p><p class="italic">(3) Clause 74, page 69 (lines 16 and 17), omit subparagraph (b)(ii).</p><p class="italic">(4) Page 69 (after line 21), after clause 74, insert:</p><p class="italic">74A Evidence involving legal professional privilege</p><p class="italic">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.</p><p class="italic">(5) Clause 149, page 122 (after line 6), after subclause (1), insert:</p><p class="italic">(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:</p><p class="italic">(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</p><p class="italic">(b) otherwise—the conclusion of the last hearing that is held in the course of the corruption investigation.</p><p class="italic">(6) Clause 155, page 128 (lines 5 to 7), omit all the words from and including "must" to the end of the clause, substitute:</p><p class="italic">must, within 14 days after receiving the report:</p><p class="italic">(c) table the report in each House of the Parliament; or</p><p class="italic">(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.</p><p class="italic">(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,".</p><p>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.</p><p>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.</p><p>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.</p><p>Historically, this has been shown. The New South Wales ICAC has been able to call legal representatives to the stand, which was critical to the success of the Eddie Obeid case. At a critical moment, an Obeid solicitor was able to be put on the stand to say that the Obeids had instructed them to do something quickly before it became public knowledge. Now, this was a crucial element to proving that the Obeids were acting on private government knowledge prior to the public release of the information. Corruption is usually carefully planned. Lawyers and accountants are engaged early in the act of corruption to develop the plan and approach. Accountancy firms usually have legally trained people to assist them with the establishment of legal professional privilege at an early stage. I strongly support legal professional privilege. I know it is an important cornerstone of the profession, but it is open to abuse. To get behind this and expose the corruption, you need to abrogate legal professional privilege. The New South Wales ICAC does so. This amendment simply says that the commission should maintain that discretion. It should not be a compulsory private hearing.</p><p>If the bill proceeds as it is, everybody except the witness would be sent out of the room during the private hearing and the evidence would be denied to the media and the public. So there would not be that accountability and transparency which I think is so central to a strong National Anti-Corruption Commission.</p> <p class="speaker">Max Chandler-Mather</p><p>The Greens will be opposing these amendments. While we appreciate the intention of amendment (5), we're concerned that, as currently drafted, it may unnecessarily constrain the commission on longer-running investigations. We would support an alternative to this, requiring that an update to the investigations be provided.</p><p>Likewise, we recognise that amendment (7) changes the period that must be given to an agency to respond before a critical finding is made against them from a 'reasonable opportunity' to three months, or a longer period, as determined by the commissioner. We appreciate what is being tried to be achieved here, but the existing drafting actually does provide a reasonable opportunity and is specific enough.</p> <p class="speaker">Mark Dreyfus</p><p>I thank the member for Warringah for her amendments and for her engagement on this legislation. The government amendments to clause 74 substantially address the member's concerns about legal professional privilege. The government's amendment will ensure that the requirement for evidence to be given in private does not apply to legal advice where privilege has been waived, for example, by the Commonwealth or a witness in the interests of transparency, or if the advice is not privileged, for example, because the advice was provided in furtherance of any legal or improper purpose. Where evidence properly attracts legal professional privilege and the privilege has not been waived, it is appropriate that the privilege be maintained. Any further amendments to this clause are unnecessary.</p><p>On the question of a deadline for the completion of investigation reports, the government does expect the commission to conduct investigations and finalise its reports in a timely manner. This is already reflected directly and expressly in the objects of the legislation, which include facilitating timely investigations. It would be inappropriate to require the commissioner to finalise an investigation within arbitrary time limits. It will be a matter for the commissioner to determine when an investigation is completed and when the subsequent report is to be prepared.</p><p>On the requirements for tabling of investigation reports, where a public hearing has been held during the course of the investigation, reports will be required to be tabled in each House of parliament within 15 sitting days after it is received. This will allow the government sufficient time to consider the report and any findings and recommendations. The commissioner will also be able to publish reports at any time when satisfied that it is in the public interest to do so.</p><p>Finally, in relation to the procedural fairness aspect of the amendments moved by the member for Warringah, the commissioner will be required to provide procedural fairness by ensuring that those who are the subject of a critical finding, opinion or recommendation in a report are offered an opportunity to respond. This will ensure procedural fairness for persons and agencies who are investigated by the commission.</p><p>It's appropriate that the commissioner determines what time period constitutes a 'reasonable opportunity' to respond, given that this will vary, depending on the circumstances. For example, a reasonable opportunity to comment on a single adverse opinion in a very short report will be different to what a reasonable opportunity would be in a case that involved a lengthy report and multiple interconnected adverse findings. The government does not support these amendments.</p> <p class="speaker">Milton Dick</p><p>The question is that amendments (3) to (7) moved together by the member for Warringah be disagreed to.</p><p></p><p></p> -
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