Submission on the National Anti-Corruption Commission Bill 2022

Civil libertarians have traditionally been very sceptical about the creation of standing Royal Commissions such as this. And in our view, there have been examples of cases in which the State Commissions have abused their powers. So it is perhaps with some reluctance that we accept the necessity of this body. Accepting that there is a need for this body it is absolutely vital that it is not given an unrestrained roving commission to enforce vague notions of integrity.[1]

[1] W. Martin Forewarned and Four-Armed - Administrative Law Values and the Fourth Arm of Government-Whitmore Lecture 2013 pages 22-29Joint Select Committee on National Anti-Corruption Commission Legislation

PO Box 6021, Parliament House

Canberra, ACT 2600

Dear Madam/Sir,

National Anti-Corruption Commission Bill 2022

Kindly accept this submission in relation to the above bill. The QCCL thanks the Joint Select Committee for the opportunity to make submissions.

1.      Process

Firstly, we wish to state our objection to the extremely short period of time provided to make submissions. The Bill was introduced to Parliament on the 28th of September, with submissions closing on the 14th of October. Two weeks is obviously an insufficient period to allow proper review of the Bill, particularly for volunteer organisations such as ours. We consider this to be entirely inappropriate.

This inappropriateness is underscored by the importance of this Bill. The introduction of a federal anti-corruption body has been eagerly anticipated and intensely debated. An independent anti-corruption commission represents a major change to our system of government at the Commonwealth level, but its very importance only heightens the need for a proper process of scrutinization and consultation.

We see no legitimate reason why this process should be so tightly circumscribed. It only serves to reduce the input to this Committee.

2.      Limitation on submissions.

The QCCL is an organisation made up of volunteers. Consequently, we have limited resources available to make submissions. We therefore only make submissions on a few key points; this should not be taken as an endorsement of any provision in the Bill upon which we do not comment.

3.      General Principles

The detection and prevention of serious and systemic corruption is a legitimate and important objective. Such corruption undermines the effective administration of government and reduces trust in our system of parliamentary democracy.

 Civil libertarians have traditionally been very sceptical about the creation of standing Royal Commissions such as this. And in our view, there have been examples of cases in which the State Commissions have abused their powers. So it is perhaps with some reluctance that we accept the necessity of this body. Accepting that there is a need for this body it is absolutely vital that it is not given an unrestrained roving commission to enforce vague notions of integrity.[1]

The point was made this way by the former Chief Justice of Western Australia[2]

After reflecting upon the dangers of reposing power in a single individual, the WA Ombudsman, Mr Chris Field, has suggested that the repositories of power in agencies of the kind to which I have referred in this paper, could be expected to have reflected upon "the almost sage-like level of expertise required, combined with sustained humility" so as to ensure that powers are not abused. With respect to Mr Field, the assertion "trust me, I am a sage and humble integrity agency" is about as convincing as the assertion "trust me, I am a sage and humble lawyer".

He also made the following observation[3]:

Even in those cases in which it might be credibly suggested that an integrity agency has exceeded its lawful jurisdiction, there are practical limitations upon the efficacy of judicial review as a mechanism of oversight and control… Cost, delay, complexity, uncertainty of outcomes and the risk of an adverse costs order combine to place a hurdle in the path of judicial review proceedings which is beyond the vault of many.

It is clear that the pursuit of the legitimate objectives of this body might imperil a number of other important civil liberties - most obviously, the right to reputation and privacy, and the right to a fair trial.

Our submissions therefore focus first on the procedures for public hearings.

Furthermore, in our democratic system, we expect that the community is able to make its voice heard by public officials and politicians. An over-cautious approach to prevent corruption might have a chilling effect on entirely legitimate lobbying and consultation. Our submissions therefore focus second on the definition of corruption.

4.      Public Hearings

Government accountability is a key part of our democratic system. Transparency is, in turn, a key part of government accountability. Without public scrutiny, abuses may flourish undetected. Transparency is therefore central to maintaining public confidence in the administration of government. It is for this reason that the common law puts such a strong emphasis on open justice as a fundamental element of a fair trial.[4] This same principle underscores Australia’s freedom-of-information system, and indeed concerns about government transparency and accountability inform the rationale for this very Bill.

But transparency is “a means to an end”, rather than an end in itself.[5] The investigation of alleged corruption also risks damaging the rights of the subject of such investigations to reputation and a fair trial. In any system that seeks to detect and prevent misconduct, there is a risk of abuse through the making of frivolous or malicious allegations. Such allegations, if made public, have significant potential to damage the accused’s reputation, regardless of their merit. For most, the law of defamation is not an adequate protection in these situations. It is slow, expensive and unable to truly compensate for a loss of reputation.

Furthermore, given that the proposed Commission may refer evidence it uncovers for criminal prosecution, public investigations pose a risk to the right to a fair trial.  Public corruption investigations potentially have a prejudicial effect, particularly as the Commission’s investigations may consider information that would not be admissible at a trial. 

There is also the practical consideration that publicising an investigation may compromise the effectiveness of that investigation. Publicity means forewarning, and thus it creates opportunities for strategies to be formulated to frustrate an investigation. The flipside of this, it is argued, is that publicity might encourage new witnesses to provide information. However, in practice this very rarely happens,[6] and so it is not a convincing counterargument.

We therefore support the default position that hearings are to be held in private.[7] We note that the concept of “exceptional circumstances” is a much more fixed concept than the “public interest” test, and that it therefore is an appropriate threshold (as to hold a public hearing, the Commissioner must be satisfied that exceptional circumstances justify a public hearing, and it is in the public interest). We therefore support the law as proposed in the Bill.

We submit that if this arrangement were to change, that it should be changed to reflect the Queensland approach, which holds that hearings are to be private, unless it would be unfair to an individual or contrary to the public interest.[8] For the purposes of corruption, the Queensland approach notes that there is a strong interest in public confidence in the integrity of public administration, and the handling of malfeasance.[9] The Queensland approach has regard to the capacity of the relevant unit of public administration to deal with the corruption itself, the nature and seriousness of the corruption (particularly where prevalent or systemic), and any likely increase in public confidence in having the corruption dealt with by the commission directly.[10]

5.      Definition of Corruption

For the reasons stated above, it is important that investigations of corruption do not have a chilling effect on legitimate consultation and that they avoid punishing perfectly legitimate decisions that favour some groups more than others. If the definition of corruption is too broad or vague, or if the threshold for investigation is too low, these effects could follow.

We support the definition of corruption in section 8 of the Bill. We agree with Justice Mahoney’s indices of partiality,[11] and with the Explanatory Memorandum’s examples of partial and impartial conduct: at [2.14]-[2.18].

The Bill proposes a threshold for the investigation of corrupt conduct: that the corrupt conduct is serious or systemic.[12] Neither term is defined in the Act, and so they are taken to have their ordinary meaning. In our view, the word ‘systemic’ is sufficiently clear. However, we are concerned that the term ‘serious’ is vague[13]. We propose that it should therefore be defined, and offer the following definition:

For the purposes of section 41(3), corrupt conduct is conduct of serious kind, provided that such conduct would, if proven in criminal proceedings, be a criminal offence, a disciplinary offence, reasonable grounds for dismissal, or a substantial breach of an applicable code of conduct.[14]

In a similar vein, we disagree that the Commissioner’s powers be enlivened where they hold a merely subjective opinion as to the systemic or serious quality of the corruption. We submit that the threshold ought to be ‘a state of reasonable satisfaction,’ to ensure the reasonableness of the Commissioner’s investigations. We consider that this threshold ought to be consistent with the state of satisfaction required by the Inspector General of Intelligence and Security in relation to referrals relating to intelligence agencies. In a connected vein, we consider that the Commissioner ought to be required to publicly report the number of investigations undertaken each year and the agencies to which these investigations relate

7.      Contempt of the NACC

Section 82(e) of the Bill provides that it would be contempt of the NACC “[create] a disturbance, or [take] part in creating or continuing a disturbance, in or near a place that the person knows is being used to hold a hearing.” This appears to be an attempt to classify protests near the NACC as contempt. We see no reason the NACC should enjoy a special protection from protests, the right to which is an important civil liberty. The Explanatory Memorandum’s justification, which may be convincing in relation to other examples of contempt (such as refusing to appear at a hearing), is unpersuasive in relation to s 82(e). Protesting near or outside the NACC would not frustrate the objects of the NACC Bill. Indeed, the right to protest is itself an important part of the accountability mechanisms in our system of government.

8.      Gag orders

We are concerned that the non-disclosure orders proposed in Part 7, Div 4 of the Bill. In our view, there should be a number of exceptions.

Firstly, on the face of it, they would permit the Commission to make an order prohibiting a person from contacting their legal representative. There should be an express provision that a nondisclosure order cannot be made preventing a person from seeking legal advice and representation.

Secondly, they do not contain an exception for disclosure in a therapeutic setting or to immediate family members. Such an exception would not seriously interfere with the stated purposes of the non-disclosure orders – namely, to preserve the integrity of the investigation, protect witnesses, and avoid prejudicing a fair trial. We submit that these situations be added to the list of exceptions found in s 98(3) of the Bill.

It is unclear to us why strict liability is required to prevent breach of non-disclosure orders. Strict liability represents a departure from a fundamental principle of criminal law – that we ought only to hold individuals criminally responsible for volitional conduct. Departing from this principle requires a very strong justification. The reason provided in the Statement of Compatibility with Human Rights is national security, but this justification is not cited later in explaining the need for clause 84 non-disclosure orders. Not every non-disclosure order issued under clause 84 will bear upon an issue of national security, and yet the proposal is to impose strict liability for all such orders. This is a weak justification for the erosion of a fundamental principle of criminal law and we oppose it.

We are also concerned about the adequacy of the provisions concerning review of the non-disclosure orders. We submit that subjects of non-disclosure orders should be allowed to request the cancellation of their non-disclosure orders and that decisions on such requests should be reviewable.

9.      Abrogation of privilege

Section 114 of the Bill proposes to remove the protection of legal privilege when giving answers at a hearing or producing documents when directed. The right to a fair trial is significantly affected by the abrogation of legal privilege. The abrogation of legal privilege represents a serious breach of lawyer-client confidentiality, which is an integral part in upholding the administration of justice.

The stated justification is that privileged material may provide valuable insight into corrupt conduct, which may or may not be true. However, abrogating privilege may simply result in such information not being communicated to legal representatives, therefore defeating the purpose of this serious intrusion into the lawyer-client relationship and preventing legal representatives from properly advising and representing their clients.

It is not clear to us why the provision is needed. There already exists an exception at common law for where a lawyer gives advice to a client to guide that client in the commission of a crime or fraud, whether the lawyer knows that is the purpose or not.[15] Adding a statutory exception only expands the existing exception, for no clear reason. Given the importance of professional privilege, we submit that such an unnecessary expansion is inappropriate.

10. Warrants for telecommunications data

We approve of the requirement for the Commission to obtain a warrant before accessing telecommunications data.[16]

       11. Definition of Journalism

We agree with the proposed definition of journalism being “a journalist would be a person working in a professional capacity as a journalist. Indicators that a person is working in a professional capacity as a journalist include regular employment, formal qualifications, adherence to enforceable ethical standards and membership of a professional body”.

We thank intern Rory Brown for preparing this submission for the Council.

We trust this is of assistance to you in your deliberations.

[1] W. Martin Forewarned and Four-Armed - Administrative Law Values and the Fourth Arm of Government-Whitmore Lecture 2013 pages 22-29

[2] Ibid page 32

[3] Page 25

[4] Russell v Russell (1976) 134 CLR 495

[5] Hogan v Hinch (2011) 243 CLR 506

[6] Callinan and Aroney, Review of the Crime and Misconduct Act 2001 (2013), p 90.

[7] National Anti-Corruption Commission Bill, s 73(1).

[8] Crime and Corruption Act 2001 (Qld), s 177.

[9] Ibid, s 34.

[10] Ibid.

[11] Greiner v ICAC (1992) 28 NSWLR 125, 161.

[12] National Anti-Corruption Commission Bill, s 41(3).

[13] We do not suggest that the legislation is retrospective in any accepted sense -Palmer and Sampford Retrospective Legislation in Australia: Looking Back at The 1980s 22 Federal Law Review 217 esp at 229-232 and Pearce and Geddes Statutory Interpretation in Australia 6th edition paragraphs 10.3 and 10.4.   However, one argument in favour of the definition of “serious” that we propose is to avoid the no doubt remote possibility that without that definition the commission may find against someone for something that at the time it occurred would not have been thought worthy of such a damaging public rebuke

[14] National Integrity Committee, Feedback on the Consultation Paper – A Commonwealth Integrity Commission – Proposed Reform (The Australia Institute, 2019).

[15] Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed., 2017), [25290].

[16] Explanatory Memorandum, p. 334.