AJ Brown I 30 September 2022
TIA Board Member
Published in The Australian
Transparency sounds easy, but the historic debate now unfolding over the form of Australia’s new national anti-corruption commission shows in reality, it can be anything but.
After former prime minister Scott Morrison made the political error of demonising Australia’s state anti-corruption commissions as ‘kangaroo courts’, the focus has returned to whether legislation introduced by the new Labor government, on Wednesday, has enough checks and balances on how the commission uses public hearings in its investigations.
The fact this is one of very few issues attracting controversy in the bill, introduced on Wednesday, is testimony to how far all political parties have come.
Gone are the denials of just a few years ago that Australia’s federal government was somehow impervious to major corruption and that an anti-corruption body wasn’t needed.
Now, this plan promises the biggest integrity reforms at federal level more than 40 years, since Australia first overhauled administrative law, introduced Freedom of Information and created the Commonwealth Ombudsman.
The opportunity is there for full political consensus, spanning the new government, the many accountability-driven independents and Greens who have championed the cause, and the Coalition.
This would be the best assurance that the body would not only be strong but also stand the test of time, as it was inevitably buffeted by future politics.
But the biggest challenge is the government’s late proviso that the commission can hold public hearings only where satisfied that “exceptional circumstances” justify doing so.
This vague and cumbersome barrier, copied from Victoria, has been criticised from all sides. Since it would still be the commission itself that decides, some say it provides no check on abuse at all. Others point out it could tie the commission up in legal hoops, and jeopardise or frustrate investigations, by adding an implied legal test that public hearings should be used only in extraordinary or extreme cases. But how extraordinary? How extreme?
It’s true that public hearings should be used only where effective and appropriate, and in a way that properly balances everyone’s rights.
The new law already follows Victoria, Queensland and Western Australia in making it the default for compulsory hearings to be private, so public ones would already be an exception to that.
But as with royal commissions, public hearings should not be exceptional, rather they become normal, when they are the best and appropriate way to investigate serious corruption, flush out more evidence, provoke debate about how it occurred and bring transparency and accountability to the whole process.
Like other MPs, Nationals senator Perin Davey interpreted the proviso in a commonsense way – happy that it signalled ‘public hearings will be the exception rather than the rule’.
Attorney-General Mark Dreyfus explained it similarly when asked in parliament. But there’s a big difference between a commonsense lay interpretation, and the legal definition implied by an ‘exceptional circumstances’ test under the law.
So, what’s the solution?
Transparency International Australia will tell the joint select committee, set to review the bill, there is a straightforward, three-step solution to achieving the government’s aim but removing the uncertainties created by this vague, unhelpful barrier.
First, the rules on what the commission must consider before initiating a public hearing can be strengthened in the bill.
Already, those criteria are the best developed in the country, informed by existing federal legislation, state precedents and the hard work of independent MP, Helen Haines. But they could be even stronger, in particular to reflect that if a criminal prosecution is the likely or intended outcome, then the right public forum is not a compulsory investigative hearing held by this commission, but a court of law. Those criteria can also be made mandatory, not just optional as is the case now.
Second, the legislation establishes an inspector to investigate and report on any complaints about the commission abusing its power – including its public hearings power. The inspector’s power to review the way the commission is exercising, or planning to exercise this discretion, and report that all safeguards are in place, can also be beefed up.
Third – while it would be best to just delete the ‘exceptional circumstances’ requirement – another alternative would be to define it, to make sure it means what people say it means rather than what the courts would be likely to imply if put to the test.
For example, ‘exceptional circumstances’ could be defined to mean that on balance, the preponderance of circumstances make it necessary, appropriate and preferable to seek the evidence in a public hearing, rather than in private.
Other questions will be raised about the commission, especially whether its parliamentary oversight committee is best constituted to ensure ongoing multiparty support and whether its funding is properly guaranteed.
Above all, the commission also does not include the whistleblower protection commissioner included in Haines’ and other crossbench bills, despite the government’s promise to match those models.
This makes it imperative to outline when, and how, it plans to fill that next big gap in the federal integrity system.
But on the test of transparency, the government’s extremely strong model can yet land a consensus solution that can stand the test of time and bolster public trust in government.
Let’s hope the coming debate brings that elusive outcome.