On the 28th of September 2022, the Attorney-General, Mark Dreyfus, introduced the Labor Government's Federal ICAC Legislation, "A Bill for an Act to provide for the establishment of
the National Anti-Corruption Commission, and for related purposes." The National Anti-Corruption Commission (NACC) began operations on the 3rd of July 2023, with 44 online referrals having already been made by the previous evening.
The NACC
At the opening ceremony for the NACC on the 3rd of July 2023, Commissioner, Paul Brereton, stated that the commission was "obviously aware of a number of matters which have been mentioned in the media and elsewhere as potential subjects for investigation”.
Mr. Brereton went on to discuss the criteria which will form which referrals will result in an investigation, stating that the NACC's main guiding principle on whether or not to investigate is “whether a corruption investigation by the commission would add value in the public interest, especially in the light of any other inquiries or investigations that are happening, and whether there is any real prospect of a finding of corrupt conduct," and that the commission “may decide to investigate some of these matters in order to clear the air, even if there does not appear to be a significant prospect of a finding of corrupt conduct”.
With a number of historic cases of alleged corruption ongoing, Mr. Brereton also clarified that the NACC will “more likely be interested in investigating matters that have current practical relevance, rather than those that are historic”. In terms of defining corruption, Mr. Brereton outlined that under the NACC's rules, "conduct can be corrupt without being criminal."
One case already referred to the NACC is the PwC tax leak scandal, referred to by The Greens and announced a day before the opening ceremony. Minister for Government Services, Bill Shorten, is also seeking advice from Services Australia regarding a signed declaration to a parliamentary committee which alleged a financial structure between Synergy 360 and former-Coalition Minister, Stuart Robert, had been established for Mr. Robert to profit from.
Mr. Brereton also confirmed that some hearings by the commission will be held publicly, but only when "the circumstances and the public interest justify an exception to the general rule that they be held in private”.
Concerns Regarding Public Hearings only Taking Place in "Exceptional Circumstances"
During Mr. Dreyfus' parliamentary speech introducing the legislation, he stated that hearings would only be public in "exceptional circumstances." The Greens' integrity spokesperson, David Shoebridge, criticised this announcement:
"In the last 24 hours we've seen the Labor government go back towards something much closer to [Scott] Morrison's model. That is not good for fighting corruption.
Mr. Dreyfus appeared on the 7.30 report on the evening of the bill's introduction to parliament. In his interview with Laura Tingle, Ms. Tingle raised the issue of public hearings only being held in exceptional circumstances with Mr. Dreyfus responding that previously established ICACs already demonstrate that public hearings only take place in exceptional circumstances:
Ms. Tingle: Mr Dreyfus, much of the debate, as we've just seen, about an anti-corruption commission seems to have been more about protecting the reputations of politicians than holding them to account. If we can start on that point, the most contentious issue that's arisen today has been the proposal that public hearings only be held in exceptional circumstances. That phrase did not appear in the design principles you set out before the election. So where did it come from?
Mr. Dreyfus: It's a phrase that is there because we want this independent and powerful anti-corruption commission to strike the balance. It's an independent decision that this commission is going to make and obviously there are factors weighing either way between whether or not you want to hold a private hearing or a public hearing. The bill contains factors for the commission to look at in deciding what it's to be, but we'd expect looking at the experience of the New South Wales ICAC that only about, well, its experience is that only 5 per cent of its hearings are in public. That already tells you that it's a fairly exceptional thing for an anti-corruption commission like this to hold a public hearing.
Ms. Tingle then questioned. with public hearings only taking place in exceptional circumstances, will the Australian public still learn of ICACs findings:
Ms. Tingle: But would people find out eventually what the commission found in even, if you did have a lot of private hearings, would it actually be reporting publicly at the end of the day?
Mr. Dreyfus: The commission will report publicly its findings of corruption. Another discretion that it has is deciding when to report, how to report, and in what detail. But if it's found corruption, the bill provides for it to report to the Australian public and that is the really important thing here. The hearings are only a part of the investigation process that the commission will engage in, and of course, there's a lot of public interest in public hearings when they do take place, and it's one way for the commission to demonstrate to the Australian public that it's going about its anti-corruption task. But at the end of the process, we're going to get reports and that is the real demonstration of what the work of the commission is.
Federal ICAC a Major Election Issue to 40% of Australians Despite Claims It's Not 'Front of Mind'
Federal ICAC a Major Election Issue to 40% of Australians Despite Claims It's Not 'Front of Mind'
Despite claims from seven Liberal MPs that a federal corruption watchdog is not a 'front of mind' issue for voters, The Australia Institute has conducted a poll revealing that 43% of Australians believe implementing a Commonwealth Integrity Commission is a major election issue for them. Furthermore, 75% of Australians support the establishment of a federal integrity commission with only 7% outright opposing it.
The Australia Institute Integrity Commission Poll
The poll also found that there was little variation in the sought necessary powers of the commission by voting intention.
The Poll also found that the Liberal National Party's lack of legislating an integrity commission since the last election represented a broken election promise to almost 7 in 10 Australians (69%). 34% strongly agreed with this statement.
The Australia Institute conducted an earlier poll in 2017 which found that 80% of Australians supported the establishment of a federal ICAC, with 78% supporting ICAC holding public hearings.
Seven Liberal MP's Claim 'Voters don't care about Integrity Commission'
In April 2022, Seven Liberal MP's spoke to The Sun-Herald and The Sunday Age and claimed that "jobs, the economy and roads infrastructure were front of mind," and expressed scepticism "a watchdog was a top-order issue for voters." The MP's who spoke to the publications were Queensland MPs Bert Van Manen, Luke Howarth, Phillip Thompson, and Ted O’Brien, New South Wales MP Fiona Martin and Victorians Jason Wood and Russell Broadbent.
This is despite the recent Australia Institute poll and an earlier poll in February 2022 by Resolve which found that 70% of voters agree that a new agency is required.
Earlier Proposed Legislation for Federal ICAC
Plans for a Commonwealth Integrity Commission were first announced by Prime Minister Scott in December 2018. In December 2020, the government released a draft of the bill which received significant criticism from various groups. The drafted legislation was labelled as suffering from "serious deficiencies" by the Australia Federal Police Association. University of Sydney law professor, Anne Twomey, claimed that it was “absurdly long and complicated” with a model that was too weak and the Law Council claimed the government's proposed plan would in fact prevent findings coming to light regarding any members of Parliament.
The Morrison Government recently abandoned their promise to establish a Federal ICAC before the 2022 election. Mr. Morrison denied this was a broken promise:
“No, it is not. I am not going to introduce a kangaroo court. I am not going to introduce a policy that I don’t think is in the nation’s best interests. It would be corrupted by a Labor Party that’s more interested in playing politics with this issue than addressing the real issues. I put forward a detailed plan, a detailed proposal, which the Labor Party rejects. I have honoured my proposal. The Labor Party don’t support it. That is where the issue rests.“
Chair of the Centre for Public Integrity and former NSW Supreme Court Judge, Anthony Whealy, has rejected Mr. Morrison's claims of a "kangaroo court" and public hearings which would ruin reputations, noting that New South Wales' anti-corruption commission for example had investigated nearly a thousand cases but only held 42 public inquiries over 8 years. Mr. Morrison's claim that that the proposed legislation being abandoned was a result of Labor's lack of support was also refuted by Mr. Whealy:
“The government has failed to introduce a federal integrity body after three years of promises and that is a colossal failure of policy. The excuse being offered that it will only be introduced if Labor supports the government’s model is a feeble one and won’t fool anybody who pays any attention to the issue...I think the inference is that they don’t want scrutiny and that, of course, therefore means that accountability and transparency and honesty are at risk,” he said.