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senate vote 2022-11-29#6
Edited by
mackay staff
on
2022-12-02 11:56:53
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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 - Draft estimates
Description
<p class="speaker">David Shoebridge</p><p>SHOEBRIDGE () (): I move Greens amendment (2) on sheet 1714:</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2022-11-29.233.1) by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means they failed.
- ### What do the amendments do?
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.233.1):
- > *Taken together, these amendments will expressly empower the oversight committee to request draft estimates—the draft budget, effectively—for the National Anti-Corruption Commission. They will then require the NACC to provide those draft estimates to the committee and then allow the committee expressly to make recommendations to both houses of parliament and to the Attorney-General on those draft estimates. In other words, if there's not enough money in the kitty for the NACC, if there's not enough money being provided for them to do their job, then the committee can recommend what the level of funding should be during the budget process.*
- >
- > *As I said before, and I won't repeat the submissions we made about how this already works for the National Audit Office, these amendments seek to draw from that experience and the longstanding provisions for the National Audit Office. It simply repeats those workable, functioning provisions for the National Audit Office for the National Anti-Corruption Commission.*
- ### Amendment text
- > *(7) Page 147 (after line 12), after clause 176, insert:*
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- >> *176A Committee may request draft estimates for NACC*
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- >> *(1) The Committee may request the Commissioner to submit to the Committee draft estimates for the NACC for a financial year before the annual Commonwealth budget for that financial year.*
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- >> *(2) The Commissioner must comply with the request in time to allow the Committee to consider the draft estimates and make recommendations on them before the budget.*
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- > *(8) Clause 177, page 148 (after line 18), after paragraph (1)(f), insert:*
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- >> *(fa) to consider draft estimates for the NACC submitted under section 176A;*
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- >> *(fb) to make recommendations to both House of Parliament, and to the Attorney-General, on draft estimates referred to in paragraph (fa);*
<p class="italic">(2) Clause 73, page 70 (after line 24), after subclause (2), insert:</p><p class="italic">(2A) For the purposes of subsection (2), exceptional circumstances include where it is preferrable and appropriate for evidence to be given in public rather than in private.</p><p>Given that the previous amendment to remove the exceptional circumstances test has not been accepted by either the government or the opposition, this amendment is designed to provide some certainty as to what 'exceptional circumstances' means and to do it in a way such that it encourages more rather than fewer public hearings. Rather than just a stab in the dark—have a guess, and you're not willing to say anything about what 'exceptional circumstances' means, which is the kind of go-to position from the government—this proposes to clearly say that for the purposes of section 73(2) of the NACC bill exceptional circumstances include where it's preferable and appropriate for evidence to be given in public rather than private. That obviously would be a major step forward for transparency. You get to keep the exceptional circumstances test that the government seems so attached to—the government has such emotional and political attachment to the exceptional circumstances test—and then we get to define it in a way such that it doesn't shut down the NACC.</p><p>I want to credit the CPSU in particular for their advocacy in the inquiry that we had, where they suggested this as a solution that might get past the political impasse of insisting on having the exceptional circumstances test. It's with hope that we can move beyond political deadlock, clearly define what exceptional circumstances mean and allow the NACC to do its job, and if it thinks it is in the public interest, and if they think it's preferable and appropriate for evidence to be given in public rather than private they can get on and do it.</p> <p class="speaker">Murray Watt</p><p>Again, we will be opposing this amendment. It's passing strange that having just told us and lectured us on why we needed to make the Anti-Corruption Commission independent, Senator Shoebridge now wants to dictate to the commission what constitutes exceptional circumstances. As we have said all along, we think that the commission should be allowed to act independently without a government dictating to it what amounts to exceptional circumstances. We have full confidence in the commission being able to work that out by exercising their own discretion.</p> <p class="speaker">David Shoebridge</p><p>That is a bizarre contribution from the minister. The definition here is an inclusive definition designed to empower the NACC and it includes where it is preferable and appropriate for evidence to be given in public and there's a public interest in place. The minister's contribution does him no credit.</p> <p class="speaker">Andrew McLachlan</p><p>I put the question that amendment (2) on sheet 1714 revised, standing in the name of Senator Shoebridge, be agreed to.</p><p>Question negatived.</p><p>I understand that the amendments in the name of the Jacqui Lambie Network and Senator David Pocock will not be moved, so we come to amendments (3) and (4) on sheet 1714 revised.</p> <p class="speaker">David Shoebridge</p><p>Amendments (3) and (4) seek to do a very simple thing. They will allow a journalist, or an entity that employs a journalist, that's been served with a warrant to produce documents or to attend an examination—they will allow that journalist or that employer of the journalist—to contest the warrant, to be there in court and articulate to the judge why the warrant shouldn't be issued or why the warrant should be narrowed, or set out such other appropriate submissions, as journalists should be able to make, before the coercive powers of the NACC can be exercised against a journalist.</p><p>I've said before, and I'll repeat it, we think it's good that the Attorney moved beyond the recommendations that came from the committee, the very narrow recommendations that came from the committee, to slightly increase journalist protections, to ensure that when a warrant is going to be issued the public interest, protecting journalism and journalists protecting their sources must be considered by the court.</p><p>But this amendment goes that further necessary step to say unless there are reasonable grounds for believing that there is a serious material risk that the journalist will seek to conceal or destroy the evidence, unless there's that concern, that the journalist has to be given notice and allowed the opportunity to contest that warrant. Why do we do this? We do this because it is already in practice in the United Kingdom and it works in the United Kingdom. There is not a single instance from the practice in the UK where a journalist that has been served with a warrant and given the opportunity to contest it has ever destroyed the evidence. But it allows the public interest to be fully contested. It protects journalism. It would be a deep irony if this parliament, in moving to empower the National Anti-Corruption Commission and to create an anticorruption body at the centre of the Commonwealth integrity agencies, in the same move harmed journalism and made it harder to be a journalist and challenged the existing integrity measures in journalism. That's why I seek leave to move amendments (3) and (4) on sheet 1714 together, and commend them to the House.</p><p>Leave granted.</p><p>I move Greens amendments (3) and (4) on sheet 1714 together:</p><p class="italic">(3) Clause 124, page 111 (after line 23), after subsection 3E(2A) of the <i>Crimes Act 1914</i>, insert:</p><p class="italic">(2AA) Before deciding whether to issue a warrant, the issuing officer must:</p><p class="italic">(a) give a notice in writing to the journalist or the employer of the journalist, to whom the warrant relates, stating that an application for a warrant has been made; and</p><p class="italic">(b) give the journalist or the employer of the journalist, to whom the warrant relates, the opportunity to make written or oral submissions.</p><p class="italic">(2AB) The Minister may, in writing, prescribe the form for the notice under paragraph (2AA)(a).</p><p class="italic">(4) Clause 124, page 111 (after line 31), after subsection 3E(2B) of the <i>Crimes Act 1914</i>, insert:</p><p class="italic">(2BA) However, subsections (2AA) and (2B) do not apply if the issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for believing that if a person was given a notice, there is a serious material risk that the evidential material might be concealed, lost, mutilated or destroyed.</p> <p class="speaker">Murray Watt</p><p>The government is committed to upholding and strengthening the freedom of the press in Australia. The bills contain strong protections for the identity of journalists' sources. The government has moved amendments to the bill in response to the recommendation of the Parliamentary Joint Committee on Human Rights to broaden the public interest test that would apply where the commission seeks a search warrant in relation to a journalist or their employer, to apply in relation to any such application rather than applications made as part of an investigation into a secrecy offence.</p><p>This amendment would require issuing officers to weigh the public interest in issuing the warrant against the public interest in protecting the source's identity and facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest. The bills also contain strong safeguards to protect the identities of journalists' sources and uphold the public interest associated with the free press. Journalists and their employers will not be required to do anything under the bill that would disclose the identity of their source or enable that identity to be ascertained.</p><p>The government has made amendments to the bill to strengthen those protections in response to recommendations made by the joint select committee reviewing the bills. The scope of the protection has been expanded to protect persons assisting a journalist who are members of staff of the same media organisation, as well as other persons assisting a journalist in their professional capacity. This will ensure persons who are assisting a journalist and who may be aware of the identity of confidential informants are protected—for example a camera person, editor or a lawyer providing legal advice in connection with an article.</p><p>The government has also broadened the public interest test that would apply where the commission seeks a search warrant in relation to a journalist or their employer, to apply in relation to any such application rather than applications made as part of an investigation into a secrecy offence. The government notes that the Parliamentary Joint Committee on Intelligence and Security considered, in its bipartisan 2020 press freedoms report, that warrants under section 3A of the Crimes Act should continue to be issued without notice to the relevant journalist or media organisation.</p><p>The government, for those reasons, does not support the proposed amendments.</p> <p class="speaker">Michaelia Cash</p><p>I note the comments that have been made by the minister. In that respect the coalition does believe that the government amendment has appropriately addressed the issue of journalist protections, in particular as highlighted in the consensus recommendation of the joint standing committee. As such, we will not be supporting the amendment.</p> <p class="speaker">David Shoebridge</p><p>Thankfully, the Attorney has gone well beyond the recommendation that came from the joint committee already, in amendments. But even with those amendments, which I accept were a step forward for the protection of journalists, all of these decisions will be made ex parte. Warrants will be issued, they'll be made often within chambers in the absence of any submissions from a journalist or any representations from a journalist about why warrants should not be issued.</p><p>The Greens firmly believe that in this space the interests of justice are best served by allowing the media themselves to make the arguments in court about why their sources, their work and their function should be protected—if it's appropriate—from the reach of the NACC. As I said before, we don't want to cruel journalism as we go through and create another anticorruption body, because up to now, and hopefully going forward, journalism has been one of the critical anticorruption measures.</p><p>Question negatived.</p><p>by leave—I move amendments (7) and (8) on sheet 1714 together:</p><p class="italic">(7) Page 147 (after line 12), after clause 176, insert:</p><p class="italic">176A Committee may request draft estimates for NACC</p><p class="italic">(1) The Committee may request the Commissioner to submit to the Committee draft estimates for the NACC for a financial year before the annual Commonwealth budget for that financial year.</p><p class="italic">(2) The Commissioner must comply with the request in time to allow the Committee to consider the draft estimates and make recommendations on them before the budget.</p><p class="italic">(8) Clause 177, page 148 (after line 18), after paragraph (1)(f), insert:</p><p class="italic">(fa) to consider draft estimates for the NACC submitted under section 176A;</p><p class="italic">(fb) to make recommendations to both House of Parliament, and to the Attorney-General, on draft estimates referred to in paragraph (fa);</p><p>Taken together, these amendments will expressly empower the oversight committee to request draft estimates—the draft budget, effectively—for the National Anti-Corruption Commission. They will then require the NACC to provide those draft estimates to the committee and then allow the committee expressly to make recommendations to both houses of parliament and to the Attorney-General on those draft estimates. In other words, if there's not enough money in the kitty for the NACC, if there's not enough money being provided for them to do their job, then the committee can recommend what the level of funding should be during the budget process.</p><p>As I said before, and I won't repeat the submissions we made about how this already works for the National Audit Office, these amendments seek to draw from that experience and the longstanding provisions for the National Audit Office. It simply repeats those workable, functioning provisions for the National Audit Office for the National Anti-Corruption Commission. For those reasons, we commend them to the committee.</p> <p class="speaker">Murray Watt</p><p>Thank you, Senator Shoebridge, for your amendment. The bill already provides the parliamentary joint committee with a broad function to review the commission's budget and finances. This includes reporting to the parliament on whether the commission's resources are sufficient to perform its functions effectively and whether its budget should be increased. The powers and proceedings of the committee would be determined by resolution of both houses of the parliament. If both houses of the parliament provide the parliamentary joint committee with the powers to call witnesses and to require the production of documents, the committee could require the commission to provide information on the commission's budget and finances, and request a response within a given time frame. No amendment to the bill is required to achieve this. For that reason, the government does not support the amendments.</p> <p class="speaker">Michaelia Cash</p><p>Again, on behalf of the opposition, I do note the reasons given by the minister. I would only add that the coalition believes that budgetary decisions in relation to any government agency should be left to the government of the day. As such, we also will not be supporting the amendments.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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