|
senate vote 2022-11-29#1
Edited by
mackay staff
on
2022-12-02 11:33:23
|
Title
National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 - in Committee - Objects of the bill- National Anti-Corruption Commission Bill 2022 and another - in Committee - Objects of the bill
Description
-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2022-11-29.37.1) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means it failed.
- ### What did the amendment do?
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.37.1):
- > *This amendment, if accepted, would fill a gap in the bill. The bill as proposed, in its principles and objects, does not contain one key statement of principle, which is that we are establishing an independent national anticorruption commission. We heard in the committee, from witnesses very familiar with the New South Wales commission, that that clear statement of intent in the objects of the bill, stating unambiguously that we are establishing an independent national anticorruption commission, will be important, because, if there is any ambiguity about how the act should operate, and it faces legal challenge, one of the first things a court will do is go back to the objects and say, 'What was parliament trying to establish here?' Surely we can unite on this and say that one of the key objects of this bill is to establish an independent national anticorruption commission.*
- ### Amendment text
- > *(1) Clause 3, page 3 (line 7), at the end of clause, add:*
- >
> *; (e) to establish an independent National Anti-Corruption Commission.*- > *; (e) to establish an independent National Anti-Corruption Commission.*
-
-
|
|
senate vote 2022-11-29#1
Edited by
mackay staff
on
2022-12-02 10:20:15
|
Title
Bills — National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; in Committee- National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 - in Committee - Objects of the bill
Description
<p class="speaker">Michaelia Cash</p><p>Now that we're in the committee stage, I want to indicate to the chamber that I have only a few questions that I just want to put to the minister and then, obviously, I'm more than happy to move onto the consideration of the amendments so that we can facilitate the bill through the parliament.</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2022-11-29.37.1) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means it failed.
- ### What did the amendment do?
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.37.1):
- > *This amendment, if accepted, would fill a gap in the bill. The bill as proposed, in its principles and objects, does not contain one key statement of principle, which is that we are establishing an independent national anticorruption commission. We heard in the committee, from witnesses very familiar with the New South Wales commission, that that clear statement of intent in the objects of the bill, stating unambiguously that we are establishing an independent national anticorruption commission, will be important, because, if there is any ambiguity about how the act should operate, and it faces legal challenge, one of the first things a court will do is go back to the objects and say, 'What was parliament trying to establish here?' Surely we can unite on this and say that one of the key objects of this bill is to establish an independent national anticorruption commission.*
- ### Amendment text
- > *(1) Clause 3, page 3 (line 7), at the end of clause, add:*
- >
- > *; (e) to establish an independent National Anti-Corruption Commission.*
<p>Minister, in relation to section 73(3) of the National Anti-Corruption Commission Bill 2022, the Australian Human Rights Commission recommended that the factors in section 73(3) be made mandatory rather than optional. Why has the government not adopted that amendment? It is one of the amendments that the coalition is putting forward. I understand the government is not supporting that amendment. Given that, as I said, it is the Australian Human Rights Commission that have made this recommendation that the factors in section 73(3) be made mandatory and not optional, what is the rationale for the government not adopting this amendment? I understand the amendment we're putting forward will not have government support.</p> <p class="speaker">Murray Watt</p><p>As Senator Cash revealed, where the bill sets out a number of factors which the commissioner may consider when determining whether to hold a public hearing, the government does not consider that it is necessary or appropriate to require the commissioner to consider each of those factors listed in all cases. The commissioner will have the discretion to determine which factors are relevant to the question of whether it would be in the public interest to hold a public hearing and whether exceptional circumstances exist in the context of a specific investigation. Under the bill, the commissioner will be required to be a former state or Federal Court judge or an experienced legal practitioner. As such, they could be expected to bring extensive legal expertise in determining whether the requirements for a public hearing are met. There is limited value in mandating a consideration of a particular issue in circumstances where it would not be a relevant factor.</p> <p class="speaker">Michaelia Cash</p><p>Thank you for that explanation. Given that it was a recommendation of the Australian Human Rights Commission, did the Attorney-General or the government have discussions with the Australian Human Rights Commission in relation to why they made that recommendation and why the government—given it is the Australian Human Rights Commission—has decided not to? And what was the feedback given by the Australian Human Rights Commission?</p> <p class="speaker">Murray Watt</p><p>Those views that were expressed by the Human Rights Commission were expressed in the context of the Senate inquiry. My understanding is that the inquiry did not make a recommendation to back in the view of the Human Rights Commission, so, yes, the Attorney-General considered those views in the context of the broader inquiry.</p> <p class="speaker">Michaelia Cash</p><p>The opposition has also proposed an amendment that would require a commissioner and a deputy commissioner to act in concert to commence a public hearing. This was a recommendation of Dr James Renwick, the former Independent National Security Legislation Monitor. Again, could we just work through the rationale behind why the government has not adopted what many would say is a very sensible recommendation?</p> <p class="speaker">Murray Watt</p><p>As Senator Cash has indicated, this is the subject of an amendment that the opposition will be moving. Fundamentally, what this comes down to is that the government considers that the commissioner will be best placed to determine whether to conduct a public hearing, including whether it is in the public interest and whether exceptional circumstances justify doing so. The commissioner will be required to ensure that the benefits of holding hearings in public are balanced with other potential negative impacts. We should not operate on the presumption that the commissioner, who will have extensive legal expertise, will not apply this test in a rigorous, fair and dispassionate manner.</p> <p class="speaker">Michaelia Cash</p><p>These are amendments that we are putting forward. I understand they don't have the government's support but it is just about getting the rationale behind why the certain decisions were made. The Law Council made a suggestion including an additional threshold that will allow the National Anti-Corruption Commission to conduct investigations into past conduct only where there is an identifiable public interest in doing so. Again, given that this is a recommendation from the Law Council of Australia and they have recommend the addition of a public interest test, can I just better understand the rationale again behind why the government hasn't taken on this recommendation? And very similar to my first question in relation to the Australian Human Rights Commission, in making this determination, what discussions were had with the Law Council in relation to why their suggestion was not being adopted and what feedback the Law Council gave to the government?</p> <p class="speaker">Murray Watt</p><p>The commissioner will be able to investigate serious or systemic corrupt conduct that occurred before the commission was established. It will be a matter for the commissioner to determine what matters involving past conduct to investigate. The government does not support limiting this discretion for the commissioner. It can be expected that the amount of time that has elapsed since the conduct is alleged to have occurred will be a factor considered by the commission in determining whether it is a priority for investigation. In some cases the passage of time will also affect the extent to which the commission is able to obtain information and evidence. These are entirely ordinary considerations for law enforcement and investigative agencies to take into account when deciding whether to open investigations into allegations relating to historic conduct. You will see a bit of a running theme between my responses to these questions, which is that we are trying to preserve the independence of the commission to make its own decisions about what to investigate—who, when—without tying it up with great limitations.</p> <p class="speaker">Michaelia Cash</p><p>You referred to one factor that the commission might take into consideration, and that was in relation to the effluxion of time. Just again, for the benefit of the <i>Hansard</i> record in particular, what are the other factors that will be considered by the commissioner in determining whether or not they should conduct an investigation into past conduct?</p> <p class="speaker">Murray Watt</p><p>I probably can't add a lot to what I've already said, but one of the things I also said which is related to time is, frankly, the strength of evidence. As Senator Cash would know being a former lawyer herself, there are usually evidentiary problems that arise the longer ago an incident occurred. So I would expect, obviously, the presence of evidence to support an allegation will be an important consideration, and that tends to decrease as time goes on.</p> <p class="speaker">Michaelia Cash</p><p>Another recommendation by the Law Council of Australia was that the administrative appeals (judicial review) act be applied to all aspects of the National Anti-Corruption Commission Bill. As you would be aware, the bill currently has significant carveouts with part 6 on investigations and part 7 on hearings. They were excluded. Again, this was a recommendation from the Law Council: why doesn't the government want people brought before the National Anti-Corruption Commission? I know in the second reading speech that I presented to the Senate yesterday, it's not just obviously about a small group of people being parliamentarians; it does go to an estimated one million people who could possibly be brought within the remit of the National Anti-Corruption Commission. So it's the concern in relation to people being brought before the National Anti-Corruption Commission having that access to judicial review and I think in the examples that we gave yesterday—Comcar drivers, cleaners in Parliament House et cetera—to have access to judicial review as they would in relation to most other decisions of Commonwealth departments.</p> <p class="speaker">Murray Watt</p><p>I think Senator Cash's question goes to an additional amendment that the opposition intends to move. The purpose of that amendment is to remove the provisions that would exempt certain decisions under the NACC Bill from review under the ADJR Act. The consequential bill that we're dealing with here provides that decisions relating to the commencement of an investigation or inquiry and intermediary or procedural steps by the commission on the way to reaching its findings would not be subject to review under the ADJR Act. This is appropriate to ensure that the commission's statutory functions are not undermined and delayed as a result of lengthy litigation at each interlocutory step of an investigation and that investigations and inquiries can be conducted in a timely manner. A person may still seek judicial review of these intermediary or procedural decisions under the Judiciary Act 1903 or in the High Court's original jurisdiction. That's why, when we get to it, the government will not be supporting this amendment.</p> <p class="speaker">Paul Scarr</p><p>Minister, again I have a number of questions coming out of the joint select committee which I served on. I appreciate you weren't there during the course of the hearing. The issue arose during the course of the hearing as to whether or not someone who's subject to a notice to produce or to testify at private hearings could tell their spouse, and we heard testimony during the course of the hearing about the psychological pressure that people are under in the context of a corruption inquiry. Why should someone not be permitted to tell their spouse, their closest psychological support, in circumstances where the spouse themselves is not the subject of a corruption investigation? Why is it that this bill doesn't provide that someone who's the subject of a corruption investigation can tell their spouse where their spouse is themselves not the subject of a corruption investigation? Doesn't that just reflect the reality of social relationships and the need for people to have the love and support of their closest person in this world?</p> <p class="speaker">Murray Watt</p><p>Thanks, Senator Scarr. I can assure Senator Scarr that the legislation as it's currently drafted does provide the commissioner with the discretion to allow people who are the subject of a notice to produce or a private hearing summons to disclose that to their family members, but on a case-by-case basis. So there's not an across-the-board permission for someone who is the subject of that sort of notice to inform their spouse. That's because in many cases it may be that family members may also be subjects of the same investigation or separate investigations. They may be the beneficiaries of allegedly corrupt conduct or they may be key witnesses in their own right. Nevertheless, the legislation does provide discretion to the commissioner to allow a disclosure to a family member on a case-by-case basis.</p> <p class="speaker">Paul Scarr</p><p>But, in a situation where the spouse themselves is not the subject of the corruption investigation, doesn't it simply reflect the reality that one would reasonably expect a person who is the subject of a corruption investigation to communicate with their spouse and to seek love and support from their spouse? That is something human experience tells us should not be subject to the discretion of a commissioner or anyone in a position of power.</p> <p class="speaker">Murray Watt</p><p>Well, I imagine that that is exactly the kind of situation where the commissioner may decide to allow someone to disclose this to a family member. But we think it's dangerous to allow that to happen in every single case without any reference to the commission itself, because there are cases where family members may also be the subject of the same investigation or separate investigations, and if we were to allow an across-the-board permission for people to disclose these types of matters to their spouse then that would potentially jeopardise investigations. But the case-by-case discretion for the commissioner exists under the legislation.</p> <p class="speaker">Paul Scarr</p><p>Minister, the Law Council of Australia raised concerns with respect to the abrogation of the privilege against self-incrimination. I know, given your experience, you're well acquainted with the foundation stones of the privilege against self-incrimination and also privileges relating to legal professional privilege. Why shouldn't the commission exhaust all other coercive powers before abrogating the principle against self-incrimination?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
-
|