Parliament has been urged to give witnesses more legal protection when they appear at public hearings of the National Anti-Corruption Commission in a new phase of the debate about the secrecy of new watchdog’s investigations.
The Law Council of Australia said the government’s draft law to set up the commission should be amended to ensure procedural fairness at the hearings, pointing to state measures such as giving witnesses time to prepare and access to documents before giving evidence.
Attorney-General Mark Dreyfus is facing calls for the new federal anti-corruption body to be more transparent.Credit:Alex Ellinghausen
While the Greens and crossbench MPs want the NACC to ensure open justice in the national interest, the Law Council backed the government in saying public hearings should only be held in “exceptional circumstances” because of the risk to personal reputations.
“Hearings should by default be conducted in private, unless the Commissioner considers that a closed hearing would be either unfair to the person or otherwise contrary to the public interest,” it said.
The peak law group added that case law suggested “exceptional circumstances” had been defined by the courts to be “highly unusual” and “quite rare” situations.
But University of Sydney law professor Anne Twomey warned against elements of the bill that would allow the NACC to hold hearings in private with no requirement to report its findings other than to government ministers.
“The upshot is that the NACC will be a body with great powers that can investigate matters in secret, hold secret hearings and issue secret reports containing secret findings,” she said in a submission.
“This will undermine public trust in the NACC and is inconsistent with the principle of transparency.”
The parliamentary committee that will oversee the NACC began holding public hearings into the draft bill on Tuesday, with Labor, Liberal, Greens and crossbenchers asking officials and independent experts about key issues such as the definition of corrupt conduct.
The Law Council suggested changes to ensure the commission needed a “reasonable suspicion” of corruption before launching an investigation, while removing a concern about future corrupt conduct from the issue.
Twomey, however, said the definition should be broadened to make sure it covered conduct by a third party – in her example, a parliamentarian – who deceived public servants into doing the wrong thing.
In a submission to the committee, barrister Bruce McClintock raised concerns that the bill would not give the Inspector of the NACC, a new position, enough power to check that the commission was using its powers lawfully, ethically and fairly.
McClintock suggested the bill be amended to include an “audit function” and specific powers so the Inspector could check on investigation failures, incompetence by NACC officials, failures to give people procedural fairness and failures to respect the rights of innocent people who have their communications intercepted.
Transparency International urged the government to change the draft law to give the commission more scope to hold public hearings, saying the test should be whether open hearings were in the public interest.
If the term “exceptional circumstances” was retained, the group added, it should be defined to mean
that the circumstances made it either necessary or preferable, and appropriate, for evidence to be given in public rather than in private.
Transparency International also suggested a change to the government’s proposal to appoint the commissioner and deputy commissioners after a referral to the parliamentary committee set up to oversee the watchdog. The change sought would stipulate a vote by a two-thirds majority of the committee to approve the appointments, ensuring bipartisan support, rather than a simple majority.
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