Will Australia’s New Corruption Watchdog Work If Hearings Are Held in Private?

After years of debate, Australia could soon have a national anti-corruption commission. But a default setting for hearings to be held in private has public integrity advocates concerned that it could fail to deliver on the very issues it sought to address: restoring faith and trust in federal politics.

On Wednesday, the Albanese government finally delivered a draft bill for the National Anti-Corruption Commission. With it, however, comes a “high bar” to have its hearings held in public, thanks to an undefined “exceptional circumstances” threshold, which a throng of legal experts and several crossbench MPs say could render the whole exercise counterproductive. 

Helen Haines, an independent MP who was the first to move a private member’s bill for an anti-corruption commission under the former Morrison government, told VICE the legislation is sturdy enough without the threshold.

She said Labor’s modelling could be stronger if it was more like what was adopted by the corruption watchdog in New South Wales.

“What we’ve seen with the anti-corruption commission in New South Wales is people like Eddie Obeid, who ended up in jail, exposed. He would never have been exposed, he would never have come to be found guilty of corruption, if it were not for the ability of the New South Wales ICAC to hold public hearings,” Haines said. 

“When you have a public hearing, other people have the opportunity to listen and hear and come forward with evidence, otherwise they may not even know about it.”

In its current form, the commission would be able to investigate and report on everyone from lobbyists and union heads to developers, donors and, of course, politicians, believed to be involved in “serious or systemic corrupt conduct” related to the federal public sector. 

Speaking to MPs in parliament on Wednesday, Australia’s attorney general, Mark Dreyfus, said it will be able to take the initiative to launch its own inquiries in response to referrals “from anyone”, which can be anonymous.

In practice, the NACC would be able to get warrants and order property searches; execute arrests, bug phones and use other forms of surveillance, and force the production of documents, among other powers.

Like Haines, several other crossbench MPs are broadly supportive of the bill, but take issue with the “exceptional circumstances” element of the package. 

Senator David Pocock told Sky News on Thursday afternoon that he had “real concerns” about it, less than 24 hours after 17 Senate and Lower House crossbenchers appeared together in a press conference to call on a lower bar for public hearings. 

But the government might not need them—yet. 

After it was introduced, opposition leader Peter Dutton offered his “in-principle” support, and accused the independents and members of the Greens keen on public hearings of wanting to “see melee in this place”.

“They want to see the system pulled down,” Dutton said. “I want people who have committed a crime to go to jail. That’s what I want. I don’t want a situation where somebody has their reputation trashed.”

Dutton’s remarks weren’t that far removed from those of former prime minister Scott Morrison who, one month before the federal election, dumped plans to bring a federal anti-corruption commission to life as promised three years earlier, because it isn’t “in the national interest”. 

He went on to label the NSW state anti-corruption watchdog, which is currently investigating former premier Gladys Berejiklian for allegedly funnelling money into her former lover’s political pockets, a “kangaroo court” that causes “damage”. 

Before Labor’s bill can pass both houses, a specially-formed parliamentary committee will have seven weeks to thrash out the more granular particulars of the bill, before it’s expected to go to the Senate in late November. Several legal experts hope the “exceptional circumstances” threshold is lowered by then. 

One of them is Anthony Whealy KC, a former judge of the NSW Court of Appeal and chair of the Centre for Public Integrity, who told VICE the test could “inhibit” the commission’s ability to expose corruption. 

“It would be very unfortunate, because you shouldn't be having litigation about these sorts of things. It’s going to hold up investigations,” Whealy said.  

“It means that in order to show exceptional circumstances the commission would have to reveal to a court the whole nature of its investigation; what evidence it has got; what witnesses have told them in private hearings,” he said. 

“And to put all that out, in a situation where the person being investigated will be tipped off about the case against them before there's even an investigation in public terms, is completely undesirable.”

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