This report is not a unanimous endorsement of the bill that was presented to parliament on September 28 by Attorney-General Mark Dreyfus. Far from it.
It is actually proof that no agreement has been possible on important aspects of the new commission – least of all from the Coalition and the legal profession’s peak national body, the Law Council of Australia.
Unanimous agreement among the 12 members of parliament who conducted this inquiry was limited to six recommendations.
Those six changes are necessary but not sufficient to address all the concerns that were raised during this inquiry by the Law Council and groups such as the Queensland Law Society and the Australian Human Rights Commission.
Serious disagreements about the government’s plan are scattered throughout the report’s 251 pages.
But because these concerns have not been collected and presented in separate remarks or even a dissenting section of the report, there is a risk that the government will portray this as evidence that all sides of politics believe the government’s bill is legislative perfection.
That might make it easier for the Coalition to support the NACC Bill when it comes on for a vote, thereby shutting the door on those who favour a more extreme approach that would accelerate the slide towards a parallel system of rough justice.
But if the Coalition now goes along with the government’s plan, despite agreeing with the Law Council that it needs more work, it would be making a Faustian bargain: it would be signing off on a law it knows to be flawed in order to block a law it fears would be catastrophic.
No matter what the motivation, the decision to play down the disagreements among those running this inquiry has left the way open for spin.
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Consider, for example, what Dreyfus said when the inquiry’s report was made public: “This unanimous report of a committee of both houses of the parliament, containing as it does government, opposition and crossbench members … gives us the best possible basis for thinking that we can get this bill through the parliament this year with overwhelming support.”
Nothing that Attorney-General said was actually wrong. Yet it fell to the Law Council, hardly a partisan player, to provide a perspective on this rushed inquiry that seems closer to reality.
It issued a statement on Friday making the point that the inquiry was only able to reach a consensus position on six recommendations.
“The report indicates there are important matters where stakeholders, and even committee members themselves, are far from holding a unified view, and others which are yet to receive more than scant attention,” the statement said.
“We would strongly urge against rushing these bills through parliament as these outstanding matters are worthy of further attention and debate. It is essential the NACC legislation works well for all Australians.
“In the Law Council’s view, the committee was unable to sufficiently evaluate certain issues owing to the truncated period made available for the inquiry, with the Bills being introduced on 28 September 2022 and submissions open until 14 October 2022,” the Law Council said.
One of the most notable aspects of this report is that many of the Law Council’s concerns about the bill were endorsed by the inquiry’s four Coalition members and dismissed by the eight Labor, Green and independent committee members.
The fact that the Coalition’s concerns are broadly in line with those of the Law Council is only apparent to those who are prepared to wade through the entire report, issue by issue.
One of the six areas of agreement was on the need to remove part of the definition of corrupt conduct – as proposed in this column on October 21 and urged on the inquiry by the Law Council, the Queensland Law Society and the Australian Human Rights Commission.
The provision the inquiry wants to delete would have extended the definition to include “corruption of any other kind”, which would have opened the door to matters that have not even been considered by parliament.
But other areas of contention remain unresolved, including the dispute over when the NACC should hold public hearings.
The government’s Bill says public hearings will only be held in exceptional circumstances and when it is in the public interest. But those decisions will be made by the commissioner alone, which is at odds with the view of key stakeholders.
The inquiry’s report shows the Coalition believes public hearings should require approval by the NACC commissioner as well as the deputy commissioner. This is in line with the approach in NSW and would provide an internal check on the immense powers of the commissioner.
The report shows Coalition members made the point that such a check on the power to hold public hearings was wholly or partially supported by the Victorian Inspectorate, the Centre for Public Integrity, the Samuel Griffith Society, the Australia Institute’s national integrity committee and James Renwick, a former National Security Legislation Monitor.
The Coalition members of this inquiry, but not the majority, also wanted to make it mandatory – not discretionary – for the commissioner to consider factors such as reputational harm before subjecting people to public hearings.
That change was supported, or supported in the alternative, by the Australian Human Rights Commission and the Australia Institute’s National Integrity Commission.
