NACC Exceptional Circumstances Restriction Should be Lifted: Retired Judges

The respected National Integrity Committee of former judges has welcomed the Government’s NACC legislation but warned that the exceptional circumstances prerequisite for public hearings would undermine the public interest without further amendments to the Bill, in their submission to the parliamentary inquiry into the Bill.

Integrity Committee member and former Supreme Court Judge the Hon. David Harper AM will appear today before the inquiry and may be available for comment.

Key Points in Submission:

  • The Committee congratulates the Government on the draft National Anti-Corruption Bill and, in particular, on giving early effect to this important reform.
  • The Committee recommends:
    • The requirement for “exceptional circumstances“ before a public hearing is held should be struck out. Instead, the Committee suggests that the Commissioner “must” have regard to a number of matters, such as the risk of unfair prejudice to a person’s reputation.
    • The parliamentary committee overseeing the NACC should be able to select any member as its chair, not be limited to a member of the Government.
    • The Inspector should be responsible for oversight of the performance of the NACC, as well as conduct issues.
  • Public hearings function as an important investigative, preventative, and educative tool against corruption and misconduct. They deter people from engaging in corrupt behaviour, encourage witnesses to come forward, and create a culture of public integrity.
  • The “exceptional circumstances” test:
    • acts as an unhelpful barrier to holding public hearings, which are already required to be in the public interest
    • is vague and open to litigation which could delay an inquiry
    • is counterproductive because secrecy can undermine confidence in the commission

“The National Anti-Corruption Commission is a much-needed and welcome contribution to public accountability”, says Bill Browne, Director of the Australia Institute’s Democracy & Accountability Program.

“Justice must be seen to be done, and that means public hearings should be held when they are in the public interest – not limited by a poorly defined ‘exceptional circumstances’ threshold.

“Australians elected an integrity super-majority in both houses of Parliament. To improve trust in our government, the Attorney-General should legislate the most robust Federal ICAC he can.

“Integrity requires sunlight, but the “exceptional circumstances” restriction risks having matters of public interest tied up in the courts and kept in the dark.”

The Australia Institute’s National Integrity Committee has worked for years to build the case for an anti-corruption watchdog with teeth.

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