February 21, 2024

The attorney general would be given authority to publicise secret reports of the national anti-corruption commission, with the Greens raising concerns this power could be used to discredit political opponents.

The Greens’ justice spokesperson, David Shoebridge, has raised the fresh concern ahead of four days of inquiry hearings into Labor’s bill, at which transparency stakeholders will argue for a lower threshold for public hearings.

But the Liberals are pushing in the opposite direction, seeking further safeguards – including making the possible factors to be considered before ordering a public hearing mandatory – and requiring a judge to issue search warrants.

Labor’s national anti-corruption commission (Nacc) bill, released in September, set a high bar for public hearings, requiring the Nacc commissioner to consider them both in the public interest and required by “exceptional circumstances”.

The bill won praise from the Liberal leader, Peter Dutton, but united the Greens and crossbench in warnings not to set the bar for public hearings so high.

The attorney general, Mark Dreyfus, has downplayed concerns, telling the National Press Club at the conclusion of an investigation “the commissioner will be able to publish a detailed report … providing transparency and a comprehensive, public account of the commission’s investigation”.

“The public can be assured if there is a finding of corruption, they will know about it. Ultimately, that is what matters,” he said.

But Shoebridge has warned that there was no requirement in the bill to publish the report or the findings of inquiries that did not have any public hearings.

Instead, the bill gives the Nacc commissioner discretion to publish all or part of a report after private hearings. It also requires a “description of the corruption investigations” that “raise significant issues” to be included in its annual report.

The bill’s explanatory memorandum states that where an investigation report was not required to be made public, the attorney general or prime minister would nevertheless be able to table it in parliament.

Shoebridge said “the ability of the attorney general to use parliamentary privilege to table any reports, even from private hearings, leaves it open to be weaponised”.

“It’s important to remember that we don’t make laws for the current attorney general; we make laws for the worst possible attorney general.”

In its submission to the inquiry, the Centre for Public Integrity accused Labor of a “serious backdown” of its principles for the Nacc, which stated it would have the power to hold public hearings if it determines it is in the public interest to do so.

It noted the bill imposed a “further hurdle” and warned decisions about “exceptional circumstances” would be subject to legal challenge.

The Centre for Public Integrity conducted a survey of current and former anti-corruption commissioners who it claimed were “universally” of the view the exceptional circumstances bar was “inappropriate”.

John McKechnie, commissioner of the West Australian Corruption and Crime Commission, reportedly replied that “it is hard to think of exceptional circumstances”.

“This is traditionally used as a legislative brake on the exercise of power and seems unnecessary.”

In addition to lowering the bar for public hearings, the Greens may seek a ban on former politicians being appointed Nacc commissioner.

The joint select committee on the Nacc legislation will begin four days of hearings on Tuesday with the attorney general’s department and a range of transparency stakeholders.

Guardian Australia understands that submissions, which are yet to be published in full, have also been received from targets of the Queensland and South Australian anti-corruption commission investigations in an attempt to bolster the case for a high threshold for public hearings.

The shadow attorney general, Julian Leeser, has expressed concern that the Administrative Appeals Tribunal could sign off on search warrants, foreshadowing that the Liberals may seek amendments to require a judge’s signoff.

The Liberals would also consider the breadth of the definition of corruption and question why factors for the Nacc commissioner to consider when weighing the need for a public hearing were optional and not compulsory.

In its submission, Transparency International called on the government to clarify that “corrupting actions of third parties or private individuals can be investigated and reported upon even if the relevant public officials are not themselves aware” of attempted corruption.

Stephen Charles, a former judge of the Victorian court of appeal, said it would be “enormously detrimental” to the Nacc’s jurisdiction if it could only investigate “corrupt public servants” and not instances where outsiders mislead an “honest” official.

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