The government’s proposed national anti-corruption commission (NACC) will be required to hold hearings in private unless it believes there are exceptional circumstances and it is in the public interest to hold open hearings — similar to the much-criticised limitation on Victoria’s hamstrung Independent Broad-based Anti-Corruption Commission (IBAC).
However, the “exceptional circumstances” requirement will be noticeably easier to meet than in Victoria — though not as easily as for the NSW Independent Commission Against Corruption.
The public nature of hearings by the new body is the remaining point of major contention over Labor’s planned body, given the Coalition believes any public hearings are “show trials”, and with integrity advocates, the Greens and the crossbenches insisting there must be the option for open hearings.
Section 73 of the NACC bill, introduced into Parliament this morning, requires that:
(1) A hearing must be held in private, unless the commissioner decides to hold the hearing, or part of the hearing, in public.
(2) The commissioner may decide to hold a hearing, or part of a hearing, in public if the commissioner is satisfied that:
(a) exceptional circumstances justify holding the hearing, or the part of the hearing, in public; and
(b) it is in the public interest to do so
There’s a non-exhaustive list of what the commission may take into account in determining if a hearing be public: the extent to which serious or systemic corruption is involved; confidentiality of information; the commission of a criminal offence; the possibility of unfair prejudice to someone’s reputation, privacy, safety or wellbeing; and the benefits of exposing corrupt conduct to the public.
While in some ways mirroring the IBAC legislation, the Victorian law creates a high hurdle to overcome before IBAC can conduct hearings in public. Section 117 of the IBAC act requires IBAC to meet a series of tests before a hearing is opened to the public: not just exceptional circumstances and a public interest test as per the federal model but a serious or systemic test, a requirement that it only be held in public if it won’t cause unreasonable damage to a person’s reputation, safety or wellbeing, and only if it won’t reveal a whistleblower.
None of those additional requirements, inserted by Victorian politicians to limit the possibility of embarrassing exposure by IBAC, applies to the NACC.
However, the NSW ICAC model is much more relaxed still — the ICAC legislation makes clear ICAC “may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry”, although there’s a non-exhaustive list of factors ICAC may consider in deciding.
Around 4% of ICAC’s hearings are conducted in public — much higher than IBAC’s, but plainly still relatively limited. The thrust of the NACC bill is to leave the issue in the hands of the commission, NSW-style, rather than impose a series of hurdles, Victorian-style. Labor will be hoping that’s enough to get it through the Senate, but integrity experts will be poring over the bill with an eye on submissions to the forthcoming joint parliamentary inquiry into the bill.
The approach to the threshold of conduct that can be investigated is left to the commission as well: commissioners will decide if corrupt conduct is “serious or systemic”. The conduct defined as corrupt is expansive: under section 8, corrupt conduct is any conduct by anyone that adversely affects directly or indirectly the honest or impartial exercise of any public official’s powers, functions or duties as a public official; a public official breaching public trust; abuse of office; misuse of information; or corruption of any other kind.
Unlike the Coalition’s toothless mode, the NACC will be able to take corruption complaints from anyone at all, and will be completely unrestricted in whether it decides to initiate its own investigations, even without a complaint. There may be some hesitation over not having as open a process as the NSW ICAC, but Labor’s anti-corruption model will be a massive step forward in terms of integrity.
