After years of debate, Australia will finally get a National Anti-Corruption Commission, fulfilling one of prime minister Anthony Albanese’s key election promises a year ahead of schedule.
In its final form, the NACC will be able to investigate and report on everyone from lobbyists and union heads to developers, donors and, of course, politicians. In other words: pretty much anyone believed to be involved in “serious or systemic corrupt conduct” related to the federal public sector will be fair game.
It will be run by a commissioner (boss) and inspector (a referee, of sorts, for anyone who has to face the commission and feels they were hard done by), who must each have the support of the NACC’s “oversight committee” in order to get appointed. The majority of that committee’s seats will be held for the party in government (six seats), while the opposition will get four, and crossbench MPs and senators will get two.
With it, however, comes a “high bar” to have its hearings held in public, thanks to a wildly ambiguous “exceptional circumstances” threshold, which a throng of legal experts and several crossbench MPs say could make it nearly impossible to hold any of the NACC’s hearings in public, rendering the commission’s transparency ambitions pointless.
The bill was officially passed on Wednesday, after a last ditch effort in the Senate the night before saw members of the crossbench try to attach a series of amendments. Only one of those proposed amendments passed, though, which gave the NACC’s inspector broader powers.
The ones that didn’t pass included efforts to do away with the “exceptional circumstances” threshold, and another that would have forced the NACC to elect its commissioner with a three-quarter majority vote, so that whoever is in government can’t just stack the body tasked with trying to determine whether they are corrupt or not.
In practice, the NACC would still 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.
But the “exceptional circumstances” threshold continues to be the source of ongoing debate over the commission—even after it passed.
Greens justice spokesperson, David Shoebridge, said making sure the NACC’s inspector was given broad powers became particularly important after it became clear the “exceptional circumstances” threshold wasn’t going away.
“In the absence of more transparent public hearings, witnesses who come before the NACC need to have access to an empowered inspector if they have been improperly questioned or denied procedural fairness. These amends give them that right,” Shoebridge said.
The decision to keep the “exceptional circumstances” threshold falls out of step with recent polling, too.
According to an October survey conducted by the Australia Institute, for instance, 67 percent of those asked said the Albanese government’s NACC should be allowed to hold public hearings “under more circumstances” than are currently allowed.
Of that group, nearly a third said public hearings should be the default for any suspected corruption believed to be in “the public interest”, while 35 percent said public hearings should be the default for all hearings, across the board.
Bill Browne, the democracy and accountability program director at the Australia Institute, said those in favour of the government’s controversial “exceptional circumstances” restriction made up less than 1 percent of voters.
Various other transparency and integrity experts said took the same position at various stages during the bill’s progression through parliament over the last two months.
After it passed on Wednesday, Transparency International Australia CEO Clancy Moore said even though the legislation remains quite tough, the high bar set for public hearings remains a significant “gap”.
“Unfortunately, the government chose to keep the exceptional circumstances test which sets a high bar for public hearings. Important information into corruption could be kept hidden from the public and could stop more information coming to light,” Moore said.
“Our research shows that this is the most restrictive test for public hearings in the country—except South Australia, which has no public hearings.”
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 in September that the legislation would have been sturdy enough without the threshold.
She said Labor’s modelling could have been 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.”
After Labor’s NACC legislation passed on Wednesday, Haines said in a statement that she was proud to have played “a significant role in its development”, even though she was disappointed to see the exceptional circumstances threshold live on.
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