4 October 2022

Does our new corruption watchdog lack bite?

| Ross Solly
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Dog in police gear

Some pundits have questioned whether the Federal Government’s new anti-corruption commission has enough teeth. Photo: File.

You know there might be a problem with the shiny new federal corruption watchdog you’ve just unveiled when several of the top judges in the land start lining up to highlight its shortcomings.

The Albanese Government eagerly trumpeted its new anti-corruption commission this week, with Attorney-General Mark Dreyfus warning politicians and officials to be afraid of its powers.

This is what the Australian people wanted, and we have delivered, Dreyfus said.

But many are suggesting it doesn’t offer enough protection for whistleblowers, and here in the ACT that’s incredibly important for our public servants. There’s also a suggestion the budget ($262m over four years) won’t be enough. And there’s general confusion about the rules in place to determine if an investigation should be held in public, or privately.

Most legal experts say the commission has the teeth required to root out corruption and clamp down on dodgy operators. But there is one line in the legislation they are not happy about, and they have no idea why it was included.

The directive to the commissioner that they only hold hearings in public in “exceptional circumstances”.

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You don’t need to be overly clever to know the difficulties in determining what are exceptional circumstances. Anthony Whealy KC is much smarter than me, and he was baffled.

“What does it mean? What are exceptional circumstances? Why have it there?” Mr Whealy said on the afternoon the legislation was released.

“Public hearings are a crucial part of investigating corruption. Sunlight is the best disinfectant, and many corruption investigations would not be successful without public hearings.”

Mr Whealy is a former NSW Supreme Court judge and chair of the Centre for Public Integrity. He was incredibly disappointed with the “toothless” anti-corruption watchdog proposed by the Morrison Government, and was eagerly anticipating this week’s release by the Albanese Government.

Generally he, and others who have been championing the anti-corruption watchdog cause, gave the new commission the thumbs up. But they fear the lack of incentive to hold hearings in public.

From my own experiences I can tell you what I view as exceptional, won’t necessarily be viewed similarly by others. So when a commissioner at the National Anti-Corruption Commission (or “NACC” as it’s become known) determines someone’s potentially corrupt behaviour is “exceptional”, you can guarantee it will be challenged in the courts.

Then the commission will need to detail the evidence it believes makes the case exceptional, giving the alleged crook a big heads-up of the likely direction of their hearing before a single sitting day. Surely this can’t be desirable.

And then there’s the concern about the protection offered to whistleblowers. As we know, pinpointing and exposing corruption at a government level, often requires a brave public servant to bell the cat.

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Some who have blown the whistle on corrupt behaviour before, including former Australian Defence Force lawyer, David McBride, say there is not enough protection in place under the NACC legislation to convince potential whistleblowers that they would be adequately protected if they exposed wrongdoings.

Mr McBride is currently feeling the wrath of the Commonwealth for blowing the whistle on alleged war crimes in Afghanistan. It was hoped the new NACC would address some of the issues that led Mr McBride to the situation he finds himself in, but it appears not.

Mark Dreyfus concedes there are not enough protections in place. But he promises this issue will be tackled separately in the near future.

One would hope so. Some commentators have said the establishment of the NACC is one of the most significant federal legislative initiatives this century.

But if there’s not enough protection for whistleblowers, and if murkiness surrounding the definition of exceptional circumstances means hearings will only ever be held in private, critics are right to fear this tiger has no bite.

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