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senate vote 2022-11-29#5
Edited by
mackay staff
on
2022-12-02 11:46:35
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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 and another - in Committee - Public hearing
Description
<p class="speaker">Jacqui Lambie</p><p>I move amendment (1) on sheet 1777:</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2022-11-29.195.1) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means it failed.
- ### What did this amendment do?
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.195.1):
- > *This amendment seeks to remove the restraint on the National Anti-Corruption Commission in terms of holding public hearings.*
- ### Amendment text
- > *(1) Clause 73, page 70 (lines 20 to 24), omit subclause (2), substitute:*
- >
- >> *(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 class="italic">(1) Clause 8, page 17 (after line 21), at the end of the clause, add:</p><p class="italic"> <i>Journalist activities</i></p><p class="italic">(14) To avoid doubt, conduct engaged in by a person who is an employee, contractor or agent of any Commonwealth agency (including the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation) that is engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media does not constitute <i>corrupt conduct</i> if:</p><p class="italic">(a) the person engaged in the conduct in the person's capacity as:</p><p class="italic">(i) a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; or</p><p class="italic">(ii) a person engaged as part of the editorial staff for the business of reporting news, presenting current affairs or expressing editorial or other content in news media; or</p><p class="italic">(b) at the time of engaging in the conduct, the person:</p><p class="italic">(i) was a member of the administrative or production staff of the Commonwealth agency or of a contractor or agent of the Commonwealth agency; and</p><p class="italic">(ii) was acting under the direction of a journalist, editor or lawyer who was an employee, contractor or agent of the Commonwealth agency.</p> <p class="speaker">Michaelia Cash</p><p>The government's amendments, moved in the House of Representatives, on journalist protection action are the consensus recommendations of the joint committee regarding journalists. It is the position of the opposition that we believe that the government has got the balance right here and that the amendment that has been proposed is not required.</p> <p class="speaker">Murray Watt</p><p>We will be opposing the amendment as well.</p> <p class="speaker">David Shoebridge</p><p>I want to thank Senator Lambie for bringing this issue to the Senate. It's my understanding that the concern that drives this amendment is to ensure there are adequate protections for journalists undertaking journalist activities within the Australian Broadcasting Corporation and the Special Broadcasting Corporation, the ABC and the SBS.</p><p>I note that, as a result of amendments in the other place, there have been increased protections for journalists from warrants that may be on them under the NACC's powers to seek warrants. I'm glad to see the Attorney moved beyond the very narrow recommendations that came out of the committee to provide broader protections for journalists in the amendments that the House adopted. They were amendments that I know myself, and I believe the deputy chair of that committee, the member for Indi, Dr Haines, were seeking to have adopted in that committee. We couldn't persuade the committee to move to adopt those greater protections, but I'm glad to see the Attorney, nevertheless, has adopted those greater protections from warrants for journalists.</p><p>I also note that clause 117 of the bill expressly protects the premises of the ABC and the SBS from the operation of search warrants under the act. So there are already express protections for the ABC and the SBS in the act. Our concern about the drafting of this amendment—and we accept it has been done in a great hurry—is that it potentially extends the protections I think we would all want for the ABC and SBS to any Commonwealth agency, and arguably anyone engaged in—I will read the amendment—'the business of reporting news, presenting current affairs or expressing editorial or other content in news media'. It arguably picks up any agency that has that kind of conduct in it. That broad definition might include the media officers in the Department of the Prime Minister and Cabinet. There would be occasions when we would want to ensure that the NACC could investigate what a media officer had put out if it was potentially trying to mask or hide corrupt conduct within PM&C. We'd say the same for the media unit of the Australian Federal Police. We would want to ensure that isn't shielded from the operations of the NACC.</p><p>I accept that this amendment has come through very late. I accept that it hasn't had the benefit of going to the committee and being reviewed by the committee. In its current format it would potentially, and I think quite likely, exclude a whole series of employees, and potentially agencies well beyond the ABC and the SBS, that should be within the purview of the NACC.</p><p>I want to say expressly, from the position of the Australian Greens—and I hope we get this echoed from the government and the opposition: individuals engaging in the practice and profession of journalism within the ABC and within the SBS are not intended to be caught within the provisions of the NACC, and challenging the government and potentially publishing and reporting on documents that there may be some statutory secrecy or some other kind of secrecy attached to would not and should not bring journalists within the ABC or the SBS within the purview of the NACC. I hope that's a united position we can adopt. At least this amendment allows us to share that acknowledged position in the chamber.</p> <p class="speaker">Jacqui Lambie</p><p>This is a really grey area here. I know we have whistleblower legislation coming up. If, for some reason, this gets nixed, that will be tackled; I believe the Attorney-General has made it quite clear he intends to get onto that very early next year. But I believe this is a grey area when it comes to journalists, and that worries me considerably. Without them, many things never come out into the open.</p><p>I understand we're probably not going to get support from both the major parties. That is worrying, and journalists will have to put up with this over the Christmas period—and that is worrying in itself—worrying about whether or not they are going to eventually end up at the NACC or in court. I am asking the government of the day, if it is not going to be dealt with today and we can't get clear air on this, sincerely to do the right thing: when you do the whistleblower legislation, look at it very thoroughly.</p> <p class="speaker">Murray Watt</p><p>Just to add to what I said before: my understanding is we've literally just received this amendment, so there hasn't been adequate time to even consider it.</p> <p class="speaker">Jacqui Lambie</p><p>We know about adequate time!</p> <p class="speaker">Murray Watt</p><p>Well, Senator Lambie, I don't think people just dump amendments on people and then expect them to vote for them. We will not be supporting the amendment. I'm reading this amendment for the first time myself. I can only come back to the general position, which is that the commission will have the power to investigate systemic and serious corruption. If behaviour does not amount to that, then people have nothing to be concerned about, whether they be journalists or anyone else.</p><p>Question negatived.</p> <p class="speaker">David Shoebridge</p><p>I move Greens amendment (1) on sheet 1714:</p><p class="italic">(1) Clause 73, page 70 (lines 20 to 24), 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>This amendment seeks to remove the restraint on the National Anti-Corruption Commission in terms of holding public hearings. As senators would know, the Labor Party took to the election a very simple proposition—that the National Anti-Corruption Commission should be able to hold public hearings if the NACC thought it was in the public interest to hold public hearings. That should be the test. People voted on that basis in good faith, and that seemed to be the position when we were first having discussions with the government after the election, but then somewhere along the line, between the election and now, something happened that flipped the government to now move to this higher threshold which is contained in 73(2):</p><p class="italic">The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that:</p><p class="italic">(a) exceptional circumstances justify holding the hearing … and</p><p class="italic">(b) it is in the public interest to do so.</p><p>The exceptional circumstances test is, of course, no doubt convenient to the opposition, who would love to see fewer public hearings. We've suddenly seen some kumbaya between the government and the opposition on the whole issue of the NACC, once public hearings were shut down.</p><p>We heard from the New South Wales ICAC and the Victorian IBAC that this is a test that should not be put into the NACC Bill. The Victorian IBAC has it. They say don't repeat it, it doesn't work, it ties them up with lawyers and it prevents them doing the job. The New South Wales ICAC says they don't have it and they're very glad they don't have it because public hearings are a key way of fighting corruption. They bring out additional witnesses. They hold the institution itself to account. They hold anti-corruption commissions to account, because they have to justify their conduct and their use of public resources and they're dealing with witnesses in the full, bright glare of public view. That's an integrity measure for integrity commissions.</p><p>We heard from the inquiry a number of unsettling instances where state integrity commissions had had private hearings over months, and sometimes years, where the witnesses felt oppressed. They felt like they weren't getting natural justice, it was all happening in secret and they couldn't tell anyone about it. In pretty much all of the cases that I saw that were potentially disturbing about the way state anti-corruption commissions operated came from private hearings where witnesses felt they could not defend themselves in public. They had their careers put at risk. Councillors we know in Queensland have raised their concerns about private hearings of the Queensland anti-corruption commission. They've said that they are unfair.</p><p>Having public hearings is not just good for the integrity of the broader Commonwealth government and politicians. It's not just good for informing the public about what the bloody hell goes on in this place. It's also good for holding anti-corruption commissions to account. That's the lesson that the government and the opposition seem to be ignoring. It's almost as though there's a calculation between the government and the opposition in this, that they'd rather one bad story on shutting down public hearings and squashing the NACC's ability to have public hearings. They will take that one bad story because it will protect business as usual in this place from the next 40 or 50 stories that will play out in public hearings as the real way in which federal politics is done is exposed in the NACC in the years to come. One bad story of shutting down the NACC shuts down 40 or 50 future bad stories in full public glare about how business is done in this place. That's the calculation that's been made by the major parties in this place. That's why the crossbench have been pretty much united in saying let's have public hearings and let's expose how business is really done at a Commonwealth level. That's why we moved this amendment. It gets rid of exceptional circumstances, it reinstates Labor's promise in the election and it is critical for the functioning of the NACC.</p> <p class="speaker">Jacqui Lambie</p><p>I want to clarify something. I believe the NACC is supposed to be truly independent. Is that a yes or no? Is the NACC truly independent?</p> <p class="speaker">Murray Watt</p><p>Yes.</p> <p class="speaker">Jacqui Lambie</p><p>If the NACC is truly independent, why are you putting restrictions on it when you say only under 'exceptional circumstances'? You don't say that's dictating to how things will be? I don't understand how you say it's independent on one side and then you dictate to it how it's going to be and that public hearings will be in exceptional circumstances. How does that possibly make it independent?</p> <p class="speaker">Murray Watt</p><p>In the discussion we were having about this bill before question time—and I don't think you were in the chamber at that point when this came up—Senator Shoebridge was asking why we weren't prepared to give examples of what exceptional circumstances might be. The answer I gave him was that we wanted to preserve the commission's independence by not dictating to them or limiting them as to what the exceptional circumstances could be. We're trying to strike the right balance here, between providing the commission with the measures that it requires along with making sure that people involved in the commission are given appropriate natural justice. We think that by granting the commission power to have public hearings in exceptional circumstances without setting down exactly what those circumstances are and leaving it to the commission to determine for themselves is the appropriate balance.</p> <p class="speaker">Jacqui Lambie</p><p>So you can't tell me either. To be exact, how does the commission itself interpret this? Seriously! Why did you bother putting it in there? Is it just a fear thing? Do you want most of the things done behind doors? Because that's how we understand it and that's how the public understands it.</p> <p class="speaker">Murray Watt</p><p>I don't think that is how the public understands it. I think what the public understands is that, as a result of the change in government and with the support of the crossbench, we are going to have a national anticorruption commission for the first time in this country. That's what I think the country understands. I also think that the country understands that this commission will have the power to hold public hearings in exceptional circumstances. We think that's an appropriate threshold which reflects the significant nature of the power to compel a person to answer questions at a public hearing. It also reflects the sensitivities involved in holding public hearings—for example, the risk of prejudicing a future criminal investigation or trial and also the issues of reputational harm that may arise. But where the commission considers there are exceptional circumstances that justify having a public hearing, then it will be able to do that.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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