THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
SECOND READING SPEECH
NATIONAL ANTI-CORRUPTION COMMISSION BILL 2022
Mr Speaker
Ahead of the election on the 21st of May the Australian Labor Party pledged that if the Australian people gave us the honour of governing this nation, we would repay their trust by returning integrity, honesty and accountability to government.
Labor told Australians that if we were elected we would legislate a National Anti-Corruption Commission this year.
Today we honour that commitment.
Today I bring to the parliament a Bill to establish a powerful, transparent and independent National Anti-Corruption Commission.
The former government promised to establish a Commonwealth Integrity Commission. It proved to be an empty promise, because they never brought a Bill before the parliament.
This government takes its commitments seriously.
And we are serious about restoring trust and integrity to government.
This legislation delivers the single biggest integrity reform this parliament has seen in decades.
It honours our commitment to Australians in both form and substance.
The design principles we announced before the election are the design principles of the bill before the House.
These design principles were developed with some of Australia’s leading integrity advocates.
They were endorsed by the Australian people at the election.
I’m also pleased to say that the design principles have been endorsed by many crossbench members in this House and in the other place.
The National Anti-Corruption Commission
The National Anti-Corruption Commission will operate independently of government and have broad jurisdiction to investigate serious or systemic corrupt conduct across the Commonwealth public sector.
It will have the power to investigate ministers, parliamentarians and their staff, statutory officer holders, employees of all government entities, and contractors.
It will have discretion to commence inquiries on its own initiative or in response to referrals from anyone, including members of the public and whistleblowers. Referrals can be anonymous.
It will be able to investigate both criminal and non-criminal corrupt conduct, and conduct occurring before or after its establishment.
It will have the power to hold public hearings.
It will also have a mandate to prevent corruption and educate Australians about corruption.
A Parliamentary Joint Committee will oversee the Commission and will be empowered to require the Commission to provide information about its performance.
Broader integrity reforms
The Commission will form part of Australia’s broader integrity framework.
The Albanese Government is committed to strengthening this framework to improve standards of integrity across the public sector.
We have established robust codes of conduct for ministers and ministerial staff and we are working across the Parliament to implement the Set the Standard Report by Sex Discrimination Commissioner Kate Jenkins.
We are committed to enhancing transparency and integrity of political donations.
In coming months I will be strengthening the Public Interest Disclosure Act 2013 to ensure Australia has effective protection of whistleblowers.
I am also working with the Minister for Finance to ensure Commonwealth agencies take measures to prevent, detect and deal with corruption by creating new requirements in the Public Governance, Performance and Accountability Rule.
The Bill
The National Anti-Corruption Commission aims to eliminate corruption in the federal public sphere, and restore trust and transparency in our democratic institutions.
The Commission will be able to investigate serious or systemic corrupt conduct affecting any part of the federal public sector.
The definition of corrupt conduct is central to the Commission’s jurisdiction. It is consistent with key elements of existing definitions at the state and territory level and in the Commonwealth Law Enforcement Integrity Commissioner Act 2006.
It encompasses conduct by a public official that involves an abuse of office, breach of public trust, misuse of information or corruption of any other kind.
It also includes conduct by any person that could adversely affect the honest or impartial exercise of a Commonwealth public official’s functions.
Other conduct that could adversely affect public administration, such as external fraud, will continue to be dealt with by existing integrity agencies.
This will ensure that the Commission is not diverted from its core purpose of tackling serious or systemic corruption.
There are well-established and effective arrangements for dealing with fraud and other crimes that affect Commonwealth interests.
For example, in the last three years, the AFP’s dedicated Fraud Command has undertaken 261 investigations into serious or complex frauds, and the Commonwealth Director of Public Prosecutions has prosecuted over 1400 fraud matters referred by the AFP and 30 other agencies in the same period.
The Commission will be the lead Commonwealth agency for the investigation of serious or systemic corruption, and will work in partnership with other agencies that form part of the Commonwealth’s broader integrity framework, including the Australian Federal Police and the Australian Public Service Commission.
The Commission will have the power to refer corruption issues to other Commonwealth, state and territory agencies for their consideration — for example, where an issue involves broader criminality or official misconduct, that falls within the jurisdiction of another, independent investigative agency.
The Commission’s powers and thresholds for using them
The Commission will have a full suite of powers similar to those of a Royal Commission.
It will be able to use its powers to undertake an investigation into a corruption issue if the Commissioner is of the opinion that it could involve serious or systemic corrupt conduct.
Importantly, the Commission will be able to undertake preliminary inquiries using powers to compel the production of information.
This will enable the Commission to determine whether an allegation could be serious or systemic.
The Commission will be able to hold public hearings in exceptional circumstances and if satisfied it is in the public interest to do so. The default position is that hearings will be held in private.
The legislation provides guidance to the Commission on factors that may be relevant to determining the public interest in holding a public hearing.
These factors include any unfair prejudice to a person’s reputation, privacy, safety or wellbeing if the hearing were to be held in public.
These factors also include the benefit of making the public aware of corruption.
Reporting
At the end of an investigation, the Commission will be required to produce a report containing findings and recommendations.
It will be able to make findings of corrupt conduct, but not of criminal guilt as this is a matter for a court to determine.
Where a public hearing has been held, a report will be tabled in Parliament. Other reports will be published by the Commissioner where that is in the public interest.
Prevention and education functions
The legislation gives the Commission the function of providing education and information about corrupt conduct and preventing that conduct.
The Commission will provide guidance and information to support the public sector to understand the concept of corrupt conduct, and to identify and address vulnerabilities to corruption.
This work will be informed by the insights the Commission draws from its investigations and the intelligence it collects about corruption.
The Commission will also engage in broader public education about its role, corruption risks, and avenues to report corrupt conduct.
The Commission’s independence
The independence of the Commission will be secured in a number of ways.
The Commission will be able to conduct investigations on its own initiative or in response to referrals or allegations from any source.
Agency heads will be required to report any corruption issue in their agency to the Commission if they suspect it could be serious or systemic.
The appointment of the Commissioner and Deputy Commissioners will be subject to approval by the Parliamentary Joint Committee. The appointees will have limited terms and security of tenure, during that term, comparable to a federal judge.
Oversight of the Commission
The Commission will be overseen by a Parliamentary Joint Committee, and an Inspector.
The Parliamentary Joint Committee will be multi-partisan; comprising 12 members — 3 government, 2 opposition and 1 crossbench member from each chamber.
The Committee will be responsible for approving the appointments of the Commissioner, the Deputy Commissioners and the Inspector.
The Committee will be able to review and report to both Houses of Parliament on the sufficiency of the Commission’s budget. The Committee will also be able to review the Commission’s performance and its annual reports.
The Inspector will deal with any corruption issues arising in the Commission, and complaints about the Commission.
Protections and safeguards
The legislation also ensures that there are appropriate safeguards against undue reputational damage, and provides protections for whistleblowers and journalists.
Reputational safeguards
There will be an express ability for the Commissioner to make public statements at any time to avoid damage to a person’s reputation.
The Commission will be able to clarify the capacity in which a witness is appearing at a public hearing.
Reports on investigations will include statements that a person has not engaged in corrupt conduct or is not the subject of any findings, where that is appropriate to avoid damage to the person’s reputation.
The Commission must afford procedural fairness to individuals or agencies who are the subject of any adverse findings it proposes to include in a report by providing them a reasonable opportunity to respond.
Whistleblower protections
The legislation provides strong protections for whistleblowers against adverse consequences, including criminal offences and immunities.
Public officials making disclosures to the Commission will also be protected under the Public Interest Disclosure Act 2013 (PID Act).
I will also be introducing separate reforms to the PID Act to improve whistleblower protections, with the aim of having these reforms in place when the Commission commences operation.
Protections for journalists
The protections for journalists include an exemption from answering questions or providing information that would enable the identity of a source to be ascertained.
Political parties and parliamentarians
Political parties and activities are an important part of our democracy, and this legislation recognises existing rules for political and parliamentary activities.
The legislation makes it clear that the use of public resources to conduct parliamentary business in accordance with the Parliamentary Business Resources Act 2017 or the Members of Parliament (Staff) Act 1984 is not within the Commission’s jurisdiction.
It also confirms that political activities that do not involve or affect the exercise of powers or functions by a public official, or the use of public resources, cannot constitute corrupt conduct.
The Commission will only be able to investigate a matter that falls within the jurisdiction of the Independent Parliamentary Expenses Authority (IPEA) or the Australian Electoral Commission (AEC) if IPEA or the AEC refer the matter to the Commission.
Before referring the matter, those authorities would need to form a view that the information raises a corruption issue that could be serious or systemic.
The legislation also expressly preserves parliamentary privilege by providing that it does not affect the powers, privileges or immunities of each House of the Parliament.
Funding
The Albanese Government has committed substantial funding of $262 million over four years for the establishment and ongoing operation of the Commission.
This funding will ensure that the Commission has the staff, capabilities and capacity to triage referrals and allegations it receives, conduct timely investigations, and undertake corruption prevention and education activities.
Conclusion
In conclusion, I'd like to acknowledge the constructive engagement on this Bill from my Cabinet and Caucus colleagues, the Opposition, crossbenchers in this House and the other place; and also acknowledge the efforts of those in this House who kept up the pressure in the last Parliament, particularly the Member for Indi.
I will shortly be moving a resolution to establish a Parliamentary Select Committee to inquire into this bill. I do so in the spirit of cooperation and multipartisanship – my sincere hope is this Bill will benefit from scrutiny, and ultimately gain broad support across the parliament.
With this Bill, the Albanese Government is fulfilling its election commitment to establish a powerful, transparent and independent National Anti-Corruption Commission. In doing so, we have the support of the Australian people. I look forward to the support of this parliament.
