THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
ABC TV 730
TUESDAY, 22 NOVEMBER 2022
SUBJECT: National Anti-Corruption Commission.
SARAH FERGUSON: The creation of a national corruption commission is getting closer. The debate over how it will function has reached the final sticking points. Independent MP Helen Haines has been a driving force for an integrity commission. She supports the Government's bill but is critical of a number of its provisions, in particular whether the Commission will hold its hearings in public or behind closed. The bill is currently before the House, and the Attorney-General Mark Dreyfus joins us now. Attorney-General, welcome to the program.
ATTORNEY-GENERAL MARK DREYFUS: Thank you for having me.
FERGUSON: The key area of dispute now is whether the Commission should hold its hearings in public. You say that should only occur in exceptional circumstances, what is an exceptional circumstance?
ATTORNEY-GENERAL: It's going to be a matter for the Commission to determine. This is an open discretion for the Commission. The bill instructs the Commission that it's to find that it's in the public interest and that there are exceptional circumstances which warrant the holding of a public hearing. So there will be public hearings. Perhaps most importantly, there'll be public reporting after the Commission has completed an investigation.
FERGUSON: Nonetheless, I expect you have an idea in your mind of what an exceptional circumstance could be and how broad or category that will be, because that's what's important for the public, isn't it?
ATTORNEY-GENERAL: I've been really careful Sarah, to not prescribe how the Commission should go about its job. I'm not going to prescribe which investigations it should carry out and I'm not going to tell it when it should hold hearings in public. What we've done, in very sharp distinction to the former government's proposal which was to have no public hearings at all for investigations into MPs and ministers, we've provided in our bill for public hearings to take place when the Commission thinks it's appropriate to do so
FERGUSON: Nonetheless, you've set the bar very high. Helen Haines emphatically rejects the idea. Today in Parliament she said that the test for public hearing should be simple - whether the Commissioner is satisfied it would be in the public interest. What's wrong with that as an idea?
ATTORNEY-GENERAL: Well, that's some of what we provided already in the bill.
FERGUSON: But not all. You're including the idea of exceptional circumstances. The point she's making is the Commissioner ought to be able to decide for himself without that provision being in place.
ATTORNEY-GENERAL: Well, that's her view and many other people hold a contrary view. What we need to bear in mind is that this is a Commission which is going to be armed with extraordinary powers. It's got the task of rooting out corruption in our public sector, and it's different to a court. So, unlike a court, which will sit in public, almost always, and that's why we have a principle of open justice, this is not the criminal justice system. It's an investigative agency, armed with extraordinary powers, and we need to be very careful that we are not going to prejudice criminal prosecutions which might follow from an investigation and that we're not going to prejudice unfairly someone's reputation.
FERGUSON: Let's return to the idea of the public's expectations. Helen Haines today called this question of exceptional circumstances, a threshold question for public trust and the principle of transparency. So why do you want to make it harder to hold public hearings?
ATTORNEY-GENERAL: I don't want to make it harder to hold public hearings. We provided for public hearings. What we're saying is that it's going to be up to the Commissioner to determine when public hearings should take place.
FERGUSON: Nonetheless, you said before that there are people who oppose Helen Haines' view, but there are also a number of people who support her. An alliance of very senior judges and legal experts, including the outgoing head of the Victorian corruption commission. He said the same thing, that is, a limit on public hearings in Victoria placed an artificial limit on the state agency. So again, the question is for the public, why would you want to repeat that circumstance which he says has held back corruption inquiries in Victoria?
ATTORNEY-GENERAL: I think we've found that there are very, very many opinions. This is something that opinions can differ on. What I think is important is that the whole Parliament seems to be coming together. Almost everybody who's spoken so far - and we've had a debate unfolding all day today with very many Members of the Parliament wanting to speak - mostly people are saying we've got the balance, right. And of course, there's, at the margins, there's details that people can have different opinions about, but I've had just as many people saying that we have got this matter right, putting some requirements around the exercise of the discretion that the Commissioner has as to whether to hold public hearings. Now, that's not the main thing here. The main thing here is that we are creating a powerful anti-corruption commission, a National Anti-Corruption Commission for the first time, more than 30 years after the first state Commission was created. It's going to be in place by the end of this year.
FERGUSON: Notwithstanding the question around exceptional circumstances and the right to public hearings being entirely at the discretion of the Commissioner is not, I think, as you said, at the margins of the debate, but central to those people who have been driving forward to have this integrity commission. Let me ask you this, how did the exceptional circumstances clause end up in the bill because it wasn't there to begin with?
ATTORNEY-GENERAL: It came about from the very many consultations that I've held since we committed as a party more almost five years ago, to introduce a National Anti-Corruption Commission. I've had hundreds of consultations Sarah, and since we won government on the 21st of May I've been actively involved in even more consultations to get this bill together, the bill that I brought to the Parliament on the 28th of September. So there have been very many opinions expressed. There have been just as many opinions expressed since we introduced the bill on the 28th of September, and many are in favour of this provision, even though there are some that have raised their voice against it.
FERGUSON: I want to come back to the experience of the Victorian corruption commission, because that is the one that has this limitation on its business, and they make the point that the bill already contained sufficient discretion for a Commissioner to consider the safety and possible prejudice to individuals. So, you don't need to add this additional limit on the work of the Commission. What do you say to that? And that's the retiring, the outgoing head of IBAC.
ATTORNEY-GENERAL: Sure, I heard that evidence and he's made a positive, a very positive contribution, as did many of the other people that have assisted the Joint Select Committee of the Parliament consisting of Labor members, Liberal members and crossbench members. They produced a unanimous report which says that this bill should go forward and they've made some recommendations, all of which we are implementing with government amendments to the bill. I simply don't see this particular feature, about which as you correctly say Sarah, there's been a lot of debate, as the be all and end all of the way in which this scheme is going to work. What's important here is we've got a powerful National Anti- Corruption Commission about to be passed, I hope, by both Houses of the Australian Parliament before the end of the year, and by the middle of next year, we will have in operation, a National Anti-Corruption Commission. And it's got a review provision so that we will be able to check again, after five years of operation of the Commission. To check that we have got the settings right we'll be able to look at the way in which it has operated over its first years of operation and if there's a view at the end of that review period that there haven't been enough public hearings, then we can have another discussion. But the key thing is there is the possibility of public hearings.
FERGUSON: I just want to get to the question of pork barrelling. You amended the definition of corruption today in your amendments. Again, to quote Helen Haines, she says the major party silence when it comes to pork barreling is deafening. Do you want to exclude pork barreling from the work of the corruption commission?
ATTORNEY-GENERAL: Not at all. We've made it very clear that we don't want to exclude pork barreling. If you read the detail of the explanatory memorandum you'll see this express reference to it. What we're not going to do, and I'll say it again, is prescribe or direct this Commission before it's even been created as to what it should be investigating. But, of course, there's the possibility of it looking at pork barreling. It's going to be a matter for the Commission to determine whether a particular instance of so-called pork barreling is something that falls within the broad definition of corrupt conduct and then whether it is what the Commission regards as serious or systemic corruption, because those are the matters that the Commission is charged with investigating.
FERGUSON: I think we haven't heard the last on public hearings, but for this evening, Attorney-General, thank you very much indeed for joining us.
ATTORNEY-GENERAL: Thanks very much, Sarah.