Mark Dreyfus says the government’s anti-corruption commission legislation honours its election commitment ‘in both form and substance’. Is that correct?

By Corruption Buzz On Nov 9, 2022

The claim

In opposition, Labor vowed to deliver on a key election commitment where the Coalition had so far failed: establishing a national anti-corruption commission.

In September, Attorney-General Mark Dreyfus introduced legislation to establish the National Anti-Corruption Commission telling parliament the bill represented a fulfilment of Labor’s election promise.

“Labor told Australians that if we were elected we would legislate a National Anti-Corruption Commission this year,” he said. “Today we honour that commitment.”

“[The bill] honours our commitment to Australians in both form and substance.”

Play Video. Duration: 22 seconds — Mr Dreyfus made the claim in parliament.

However, Greens senator David Shoebridge has described part of the legislation as a “significant deviation” from the policy Labor took to the election.

So, does the proposed legislation match what was pledged before the election in both form and substance?

RMIT ABC Fact Check investigates.

The verdict

Mr Dreyfus’s claim is in the ballpark.

Labor didn’t simply promise to establish an anti-corruption body. Rather, its election platform pledged to legislate a “powerful, transparent and independent” commission.

Prior to the election, Labor committed to seven “design principles” of the NACC. Furthermore, it promised the NACC would have the “independence, resources and powers” of a standing royal commission.

Legal experts contacted by Fact Check agreed that six of Labor’s design principles relating to jurisdiction, oversight mechanisms and reporting were reflected in Labor’s bill.

They also noted the NACC bill was similar to a standing royal commission in terms of its independence and many coercive powers of investigation.

However, the bill’s inclusion of an “exceptional circumstances” test in order to hold public hearings in addition to a “public interest” test left experts divided over whether Labor had fulfilled its commitments in relation to public hearings in the design principles.

And when compared to a royal commission, experts told Fact Check Labor’s proposed commission would have lesser powers to hold public hearings.

In addition, in relation to resourcing, some recent single-issue royal commission budgets exceed the proposed annual budget of the NACC.

The devil is in the detail

Throughout the election campaign, Labor, the Coalition, the Greens and many of the independents voiced support for the establishment of an anti-corruption commission. The specific shape it should take was however contested.

The Coalition proposed its own model in November 2020 which a then senior cabinet minister argued contained powers “well in excess” of a royal commission.

Fact Check found that claim to be overblown.

Legal experts contacted by Fact Check at the time noted that the Coalition’s proposed model undercut the new body’s powers in several ways that did not apply to royal commissions, including its inability to hold public hearings, make public reports or initiate its own investigations in its public sector division responsible for investigating parliamentarians and other public officials.

Furthermore, experts noted the resources of many single-issue royal commissions far exceeded the proposed budget of the Coalition’s model.

During a Sky News pre-election debate in April, then prime minister Scott Morrison defended the Coalition’s model arguing its provisions for secrecy would prevent the commission from becoming a “kangaroo court” and would protect politicians from being unfairly tarnished by the media.

Then opposition leader Anthony Albanese rebuked Mr Morrison asserting the Coalition’s model lacked independence and transparency.

“What we need is a national anti-corruption commission with teeth. One which is able to control its own investigations,” he said.

“It needs to be independent, at arm’s length. It needs to have the capacity to have public hearings if it deems that that is in the public interest.”

Labor’s election commitment

Labor said there was an “urgent need for a powerful, transparent and independent National Anti-Corruption Commission” before the 2022 election.(ABC News: David Maguire)

While in opposition, Labor did not publish legislation that outlined the specifics of its model.

Rather, it used a number of forums to detail a set of characteristics the NACC would have under a Labor government.

In May 2022, just weeks out from the election, Mr Dreyfus told ABC Radio Melbourne that specific legislation was a “matter for government”.

“We’ve published detailed design principles,” he said. “It’s very clear what features we say a strong independent anti-corruption commission should have and we think that’s enough for an opposition.”

In the months leading up to the election, Mr Dreyfus made regular media appearances speaking about Labor’s design principles for the NACC.

For example, in October 2021 he told the ABC’s RN Breakfast program: “Labor is going to introduce a strong, independent anti-corruption commission which will have all the powers of a standing royal commission”.

This was also set out on the party’s official policy platform website as of 21 May, the day of the federal election.

“The National Anti-Corruption Commission established by Labor will operate with all the independence, resources and powers of a standing royal commission,” the policy reads.

The platform further set out seven “design principles” it said had been developed in consultation with legal experts to ensure it was “the most effective anti-corruption watchdog in the country”.

These principles are as follows:

Have broad jurisdiction to investigate Commonwealth ministers, public servants, statutory office holders, government agencies, parliamentarians, and personal staff of politicians 
Carry out its functions independently of government, with discretion to commence inquiries into serious and systemic corruption on its own initiative or in response to referrals, including from whistleblowers and complaints from the public. To ensure the commission’s independence, the commissioner and any deputy commissioner would serve for a single fixed term and have security of tenure comparable to that of a federal judge
Be overseen by a statutory bipartisan joint standing committee of the parliament, empowered to require the commission to provide information about its work. To ensure bipartisan support for the commission’s work, that committee would be responsible for confirming the commissioners nominated by the government
Have the power to investigate allegations of serious and systemic corruption that occurred before or after its establishment
Have the power to hold public hearings where the commission determines it is in the public interest to do so
Be empowered to make findings of fact, including a finding of corrupt conduct, but not to make determinations of criminal liability. Findings that could constitute criminal conduct would be referred to the Australian Federal Police or the Commonwealth Department of Public Prosecutions for further consideration
Operate with procedural fairness and its findings would be subject to judicial review

Labor’s bill

On September 28 Mr Dreyfus introduced the National Anti-Corruption Commission Bill 2022.

Before it was voted on by the parliament, the bill was referred to a joint parliamentary committee with a November reporting date.

Fact Check has limited its analysis to the bill as introduced by Mr Dreyfus on 28 September, the day he claimed the bill matched the election commitment in both form and substance.

Jurisdiction, oversight and review

Labor’s bill gives the NACC a “broad jurisdiction” to investigate corruption in the present and the past.(ABC News)

Five of Labor’s design principles published on its election platform relate to the proposed body’s jurisdiction, independence of government, oversight and review mechanisms.

In this regard, associate professor and deputy director of the Australian Centre for Justice Innovation at Monash University Yee-Fui Ng told Fact Check the legislation introduced by Mr Dreyfus conformed with Labor’s pre-election commitments.

Similarly, professor of public policy and director of the Stretton Institute at the University of Adelaide Adam Graycar told Fact Check Labor had in this respect “honour[ed] the commitment” set out in the design principles.

Consistent with Labor’s design principle relating to jurisdiction, the legislation would allow for a wide range of individuals who are employed or interact with the Commonwealth to be investigated by the NACC, Dr Ng said.

“It has broad jurisdiction so it can investigate the actions of ministers, members of parliament, ministerial staff, the staff of Commonwealth agencies and companies, government contractors and those who exercise powers on behalf of the Commonwealth,” she added.

In line with Labor’s design principles relating to independence and ability for retrospective investigations, the bill empowers the NACC to contemporaneously or retrospectively initiate investigations it deems may be “serious or systemic corrupt conduct,” Dr Ng noted.

“That might cover grey area corruption issues like pork-barrelling or rorts scandals where it might be serious or systemic,” she said.

Finally, Dr Ng said the legislation had delivered on Labor’s commitments to oversight mechanisms that promised to establish a bipartisan joint standing committee and a commitment the NACC would operate with procedural fairness and be subject to judicial review.

“[The NACC] is adequately scrutinised in terms of parliamentary scrutiny and judicial review is also available,” she said.

Findings of fact and public reports

The NACC would not make findings of criminal liability.(Penn State/Flickr.com/ CC BY-NC-ND /2.0)

Labor’s design principles also committed to empowering the NACC to “make findings of fact”.

As outlined in a recent review of the NACC bill published by corporate law firm Ashurst, the commission is able to make findings of fact and is compelled to report publicly on these findings.

“The Bill enables the NACC to make findings of fact and express opinions,” the review reads.

“The NACC must prepare an investigation report once an investigation is complete. The report must set out the NACC’s finding or opinion on the corruption issue; summarise the relevant evidence and information on which that finding or opinion is based; and provide any recommendation that the NACC thinks fit to make, along with the associated reasons for the recommendation.”

Consistent with Labor’s design principles, the NACC would not make determinations of criminal liability, rather, suspected criminal conduct would be referred to the relevant agency, the review noted.

Public hearings in the design principles

Labor also pledged to grant power to the NACC to “hold public hearings where the commission determines it is in the public interest to do so” in its design principles.

During the joint parliamentary committee’s hearings, Greens senator David Shoebridge said: “That’s not what the bill provides.”

He said Labor’s inclusion of an “exceptional circumstances” clause could override the “public interest” clause and was “a significant deviation from the design principles”.

Experts contacted by Fact Check had differing views as to what degree the public hearings design principle was reflected in Labor’s legislation.

Professor of public policy and law at Griffith University and board member of Transparency International Australia AJ Brown told Fact Check: “The insertion of the exceptional circumstances is a departure from the design principles as they presented them and how they knew they would be interpreted.”

As Professor Brown explained to the ABC Radio’s Law Report programme, the commission would be required to satisfy both of these tests in order to publicly hold a hearing.

Play Audio. Duration: 30 minutes — Professor Brown was interviewed in an episode of ABC Radio’s Law Report.

But while the “public interest” clause contained specific criteria for the commissioner to make a determination, this was not present in the “exceptional circumstances” clause. This ambiguity introduced the chance of litigation challenging this decision that could hinder the work of the commission, he said.

Appearing before the parliamentary committee, Professor Brown said Mr Dreyfus and members of the Coalition had recently said it was good to know that public hearings would be the exception rather than the rule.

“There is absolutely nothing wrong with that, but the fact is that’s not what the term ‘exceptional circumstances’ does in the provision. It imposes a requirement—however problematic or not, legally—that it will only be in extraordinary circumstances that a public hearing will be held,” he told the committee.

Professor Brown told Fact Check it was appropriate for hearings to be held in private by default in practice, but that the introduction of a legal test stipulating this requirement introduced an unnecessarily high bar for the commissioner to justify in order to hold a public hearing.

Similarly, in a submission to the committee, progressive think tank the Australia Institute’s National Integrity Committee — comprising an independent group of retired judges — argued the “exceptional circumstances” clause acted as an “unhelpful barrier to holding public hearings”.

In contrast, in its submission to the committee, the Law Council of Australia canvassed a broader set of views held by its members in regard to the “exceptional circumstances” provision with some expressing satisfaction and others arguing it was “unnecessarily complex”.

Professor Graycar told Fact Check: “There are certainly discussions about [public hearings], how often and who will decide, and on what criteria.”

However, he argued the legislation had — as suggested by Mr Dreyfus — honoured the “form and substance” of Labor’s election commitment.

“Politics is about interpretations and there are always disagreements,” he said.

Before the election, Professor Graycar wrote in The Conversation that Labor’s proposal on public hearings was “very short on detail”.

Similarly, senior fellow at the Centre for Independent Studies Scott Prasser told Fact Check the pre-election proposal was “pretty general” in nature.

Dr Prasser said Labor’s initial policy proposition was broad and the provisions for public hearings in the legislation “honoured the spirit and basic commitments” of Labor’s stated design principles.

The independence, powers and resources of a standing royal commission?

In addition to the “design principles” Labor also promised the NACC would have the “independence, resources and powers” of a royal commission.

The powers and characteristics of a royal commission are clearly defined in legislation.

Dr Prasser — who has written books on royal commissions and was a member of the advisory committee to the Australian Law Reform Commission’s review of the Royal Commision Act — previously told Fact Check royal commissioners are granted a level of independence from the government in their ability to broadly interpret their terms of reference.

Similarly, Labor’s legislation grants the NACC independence of government with its ability to initiate its own investigations into a broad range of activities.

As Australian law firm Clayton Utz wrote in a review of the legislation on its website, Labor’s bill would see the NACC operate “independently of Government with a discretion to start investigations on its own initiative or in response to referrals (including anonymous referrals from whistleblowers and the public)”.

Furthermore, like a royal commission, appointments of the NACC upon which its discretion would rely would also ultimately rest with the government, Dr Prasser said.

The Ashurst legislation review describes a broad range of coercive powers available to the NACC under Labor’s bill including the ability to compel documents and witnesses, search and seizure powers on property operated by Commonwealth agencies and the ability to obtain and execute search warrants on non-government property.

As Fact Check previously established, similar coercive powers are available to a royal commission.

At the time, Fact Check noted that public hearings were an important investigative power of a royal commission because of their ability to bring forward further witnesses or potential evidence as a result of the public nature of its hearings.

Professor Brown argued that while the “exceptional circumstances” clause remained undefined in the legislation, it represented a “significant” difference between the two bodies’ powers to hold a public hearing.

Similarly, Dr Prasser told Fact Check there was “definitely” a higher bar set for holding public hearings in the NACC bill when compared to a royal commission.

“There is no test for a royal commission — it can decide to do whatever it likes,” he said.

Furthermore, when it came to resources, Dr Prasser said the budgets of some single-issue royal commissions would far exceed the annual budget proposed by Labor in its first budget.

The 2022-23 budget handed down by Treasurer Jim Chalmers in October allocated a total of $262.6 million over four years to fund the NACC — approximately $65.65 million a year.

In contrast, the 2021-22 budget handed down by the former Coalition government allocated $145.3 million over two years to fund the Royal Commission into Defence and Veteran Suicide. A further $28.9 million over two years was allocated to the Department of Veterans Affairs to assist in responding to information requests from the commission.

Principal researcher: Sonam Thomas

factcheck@rmit.edu.au

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