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senate vote 2022-11-29#3
Edited by
mackay staff
on
2022-12-02 11:32:36
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Title
National Anti-Corruption Commission Bill 2022 and another - in Committee - Pork barrelling and corrupt conduct definition- National Anti-Corruption Commission Bill 2022 and another - in Committee - Pork barrelling and corruption definition
Description
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The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2022-11-29.55.1) introduced by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent), which means they failed.- The majority voted against [amendments (2) and (3) on sheet 1730](https://www.openaustralia.org.au/senate/?id=2022-11-29.4.2) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means they failed.
### What did these amendments do?- ### What do the amendments do?
Senator Pocock [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.55.1):- Regarding amendment (2), Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.49.1):
> *These amendments were [moved by the member for Indi](https://theyvoteforyou.org.au/divisions/representatives/2022-11-24/3), [Helen Haines](https://theyvoteforyou.org.au/people/representatives/indi/helen_haines), in the lower house. Again, I would like to thank her for her work on this issue over many years.*>> *These amendments make clear that pork-barrelling is corruption. We've seen concerns in communities across the country with the way that public funds have been allocated for political gain. This makes it clear that that can be investigated. I'm also concerned that this bill falls short when it comes to conduct by third parties that could impair public confidence in public administration—in particular, practices of collusive tendering, dishonestly obtaining benefit from public funding decisions and defrauding public revenue. This makes it clear that those are included.*- > *Amendment (2) seeks to re-insert a provision that was stripped out by the other place in relation to the definition of 'corruption' found in section 8 of the bill. *
- Regarding amendment (3), he [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.52.1):
- > *our amendment (3) is simply to put in a notation to the definition of corruption that provides, by way of guidance, that corrupt conduct may include conduct that constitutes pork-barrelling or political donations for the purpose of influencing a decision or policy made by a public official.*
- ### Amendment text
> *(1) Clause 8, page 15 (line 20), at the end of subclause (1), add:*- > *(2) Clause 8, page 15 (line 20), at the end of subclause (1), add:*
- >
>> *; (e) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes.*- >> *; (e) any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.*
- >
> *(2) Clause 8, page 15 (after line 20), after subclause (1), insert:*- > *(3) Clause 8, page 15 (after line 20), at the end of subclause (1), add:*
- >
>> *(1A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:*>>>>> *(a) collusive tendering;*>>>>>> *(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;*>>>>>> *(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;*>>>>>> *(d) defrauding the public revenue;*>>>>>> *(e) fraudulently obtaining or retaining employment or appointment as a public official.*>> *(3) Clause 8, page 15 (line 21), omit "does not", substitute "and subsection (1A) do not".*>> *(4) Clause 8, page 16 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".*- >> *Note: Corrupt conduct may include conduct that constitutes pork barrelling or political donations for the purpose of influencing a decision or policy made by a public official.*
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senate vote 2022-11-29#3
Edited by
mackay staff
on
2022-12-02 11:05:06
|
Title
National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 - in Committee - Pork barrelling and corrupt conduct definition- National Anti-Corruption Commission Bill 2022 and another - in Committee - Pork barrelling and corrupt conduct definition
Description
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- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2022-11-29.55.1) introduced by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent), which means they failed.
- ### What did these amendments do?
- Senator Pocock [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.55.1):
- > *These amendments were [moved by the member for Indi](https://theyvoteforyou.org.au/divisions/representatives/2022-11-24/3), [Helen Haines](https://theyvoteforyou.org.au/people/representatives/indi/helen_haines), in the lower house. Again, I would like to thank her for her work on this issue over many years.*
- >
- > *These amendments make clear that pork-barrelling is corruption. We've seen concerns in communities across the country with the way that public funds have been allocated for political gain. This makes it clear that that can be investigated. I'm also concerned that this bill falls short when it comes to conduct by third parties that could impair public confidence in public administration—in particular, practices of collusive tendering, dishonestly obtaining benefit from public funding decisions and defrauding public revenue. This makes it clear that those are included.*
- ### Amendment text
- > *(1) Clause 8, page 15 (line 20), at the end of subclause (1), add:*
- >
- >> *; (e) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes.*
- >
- > *(2) Clause 8, page 15 (after line 20), after subclause (1), insert:*
- >
- >> *(1A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:*
- >>
- >>> *(a) collusive tendering;*
- >>>
- >>> *(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;*
- >>>
- >>> *(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;*
- >>>
- >>> *(d) defrauding the public revenue;*
- >>>
- >>> *(e) fraudulently obtaining or retaining employment or appointment as a public official.*
- >
- > *(3) Clause 8, page 15 (line 21), omit "does not", substitute "and subsection (1A) do not".*
- >
> *(4) Clause 8, page 16 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".*- > *(4) Clause 8, page 16 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".*
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senate vote 2022-11-29#3
Edited by
mackay staff
on
2022-12-02 11:04:43
|
Title
Bills — National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022; in Committee- National Anti-Corruption Commission Bill 2022, National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 - in Committee - Pork barrelling and corrupt conduct definition
Description
<p class="speaker">David Shoebridge</p><p>At this stage, I move Greens amendment (2) on sheet 1730:</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2022-11-29.55.1) introduced by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent), which means they failed.
- ### What did these amendments do?
- Senator Pocock [explained that](https://www.openaustralia.org.au/senate/?gid=2022-11-29.55.1):
- > *These amendments were [moved by the member for Indi](https://theyvoteforyou.org.au/divisions/representatives/2022-11-24/3), [Helen Haines](https://theyvoteforyou.org.au/people/representatives/indi/helen_haines), in the lower house. Again, I would like to thank her for her work on this issue over many years.*
- >
- > *These amendments make clear that pork-barrelling is corruption. We've seen concerns in communities across the country with the way that public funds have been allocated for political gain. This makes it clear that that can be investigated. I'm also concerned that this bill falls short when it comes to conduct by third parties that could impair public confidence in public administration—in particular, practices of collusive tendering, dishonestly obtaining benefit from public funding decisions and defrauding public revenue. This makes it clear that those are included.*
- ### Amendment text
- > *(1) Clause 8, page 15 (line 20), at the end of subclause (1), add:*
- >
- >> *; (e) any conduct of a public official that involves the allocation of public funds or other resources to targeted electors for partisan political purposes.*
- >
- > *(2) Clause 8, page 15 (after line 20), after subclause (1), insert:*
- >
- >> *(1A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:*
- >>
- >>> *(a) collusive tendering;*
- >>>
- >>> *(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources;*
- >>>
- >>> *(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;*
- >>>
- >>> *(d) defrauding the public revenue;*
- >>>
- >>> *(e) fraudulently obtaining or retaining employment or appointment as a public official.*
- >
- > *(3) Clause 8, page 15 (line 21), omit "does not", substitute "and subsection (1A) do not".*
- >
- > *(4) Clause 8, page 16 (line 15), after "paragraph (1)(a)", insert "or subsection (1A)".*
<p class="italic">(2) Clause 8, page 15 (line 20), at the end of subclause (1), add:</p><p class="italic">; (e) any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.</p><p>I'll speak to Greens amendments (1) and (3) at the same time, because that might be convenient.</p><p>Amendment (2) seeks to re-insert a provision that was stripped out by the other place in relation to the definition of 'corruption' found in section 8 of the bill. There was some discussion about this during the committee hearing in relation to the bill, and there were a minority of participants in that committee inquiry—the Queensland Bar Association and the South Australian Bar Association—who were anxious about what was then section 8(1)(e) of the bill. It had an extended definition of corruption for the purposes of the jurisdiction of the NACC, which included any conduct of a public official in that capacity which constitutes, involves or is engaged in for the purpose of corruption of any other kind. The concern that was raised by a minority of participants in the inquiry was that that was somehow too broad.</p><p>The Greens simply don't accept that, and I know that a number of other crossbench members, in the other place in particular, oppose the stripping out of that. That's for the very good reason that the argument that it's too broad fails to engage with how this provision fits within the bill. First of all, for this provision to be engaged, the NACC have to be satisfied that what they're looking at is corruption. Corruption has a well-understood definition and meaning and, as we've seen just from the last week in federal politics, politicians can keep coming up with new and novel ways to betray the public trust. We saw that in the report that was released on Friday by the honourable former Justice Bell in relation to the former Prime Minister, where we saw an example of what I would say is corrupt conduct that no-one would have thought possible 12 months ago. The now former Prime Minister sought to have multiple ministerial appointments and kept that secret from the public, the parliament and even his own colleagues: who would have thought that kind of corruption could have been cooked up 12 months ago?</p><p>We've also seen in the last week the conduct of another member of the other place exposed as being, basically, an agent for sale—seeking to lobby in his role as a backbencher for whoever was willing to put cash in his tin. He has been exposed for doing that. Maybe that kind of appalling behaviour is more predictable. But we can see, just from the last week, how politicians keep coming up with new and novel ways to corrupt this parliament and to engage in corrupt conduct. So of course we need a broad definition going forward, because heaven knows what they'll come up with next to try to corrupt the public interest.</p><p>Further: for this clause to be engaged the NACC also has to be satisfied that it's not just corruption but serious or repeated corruption. So the question we ask of both the government and the opposition is: what kind of serious or repeated corruption do you not want the NACC to look at? That's the ultimate test here. If they oppose reinserting this subsection 8(1)(e) then they're saying that there's some serious or repeated corruption that they don't want the National Anti-Corruption Commission to have jurisdiction in relation to. If that's so, tell us what it is. Tell us what that corruption is, because we don't think we should be shutting the gates and closing the categories of corruption. That's because we know how in the past politicians have kept coming up with new and novel ways to corrupt parliament, to corrupt government and to betray the public interest.</p> <p class="speaker">Murray Watt</p><p>As I said, I think we're all becoming accustomed to Senator Shoebridge's style of argument, which is to say that if you don't agree with what he's saying then you're in some way a terrible person. We've heard that loud and clear. But we're confident that the legislation we have put forward to the parliament strikes the right balance and, for the very first time, sees an Australian government taking issues of corruption seriously at the federal level.</p><p>Senator Shoebridge's first amendment, item (2), seeks to reinsert a paragraph in the bill as to the definition of corrupt conduct: I'm sure Senator Shoebridge is aware that what we've done in omitting that paragraph is to accept the recommendation of the joint select committee that looked at this bill. That was a joint select committee that included representatives of the Australian Greens. That committee recommended this clause be omitted from the bill, that committee included members of the Greens, and that's what we're doing.</p><p>I might also point out that Senator Shoebridge has tried to characterise the people who support the government's position as being some kind of a minority. That's a minority that includes the Law Council of Australia and the Australian Human Rights Commission, who also agree with the government, and, for that matter, the joint select committee, that this clause should be omitted from the bill.</p><p>Paragraphs 8(1)(a) to 8(1)(d) of the bill, which are retained here, would provide the commission with broad jurisdiction to investigate corrupt conduct consistent with most state and territory models. The government is confident that the amended definition of 'corrupt conduct' will enable the commission to effectively investigate any form of serious or systemic corrupt conduct that is referred to it or that it may identify itself. For that reason, we won't be supporting that amendment.</p><p>In relation to the second amendment, item (3): as the Attorney-General has noted, there's a point at which the making of discretionary grants can cross the line into corruption—referred to as pork barrelling—where public money is being given away for private purposes. The bill would enable the commission to investigate serious or systemic corrupt conduct in relation to a discretionary grants program where that conduct may involve a breach of public trust or dishonest or partial conduct. These are well-established concepts which are being considered by the New South Wales Independent Commission Against Corruption in its Operation Jersey. If there are circumstances where grants are allocated dishonestly or for an improper purpose, the commission has the power to decide to investigate if it is of the opinion that this could involve serious or systemic corruption. There is a range of other activity going on within the Albanese government in this space, including the Minister for Finance considering opportunities to strengthen the Commonwealth Grants Rules and Guidelines. For these reasons, the government does not support this amendment.</p> <p class="speaker">Michaelia Cash</p><p>I note that the Australian Greens have moved amendment (2) as opposed to amendments (2) and (3), but I will put on the record the coalition's comments in relation to both amendments (2) and (3).</p><p>As we have throughout the entire process—I know I have Senator Paul Scarr in the chamber with me—we approach this legislation in the spirit of bipartisanship. In particular, as the minister has outlined and as Senator Scarr knows, we accept the recommendations of the joint select committee. They were consensus recommendations. The committee investigated these matters in detail. They worked through these matters, listened to the evidence and, as I've said, made consensus recommendations, which we support.</p><p>Amendment (2) contradicts the consensus recommendations of the joint select committee. Even the Law Council, the Queensland Law Society and the Australian Human Rights Commission all expressed the view that the provision was both circular and unclear. To that extent, it will make it difficult, if not impossible, for public officials to know what conduct is actually captured within the provision. There is no clear or compelling case, in particular given the recommendations coming out of the joint select committee, for including this provision. I note that even the Attorney-General's Department, responsible for the drafting of the bill and the preparation of the explanatory materials, were themselves unable to identify a single example of conduct which would be captured by the clause.</p><p>In relation to amendment (3), we would say it is a legislative note but the amendment is actually unnecessary. Again, we have approached this bill in the spirit of bipartisanship; I thank Senator Paul Scarr for the work he undertook on behalf of the coalition. When you look at the joint select committee, it considered the definition of 'corrupt conduct' in detail. Again, when you look at the recommendations of the joint select committee, this is not a provision that was recommended. In addition to not being recommended by the committee, when you look at the drafting we have it is problematic in that it leaves the scope of the commission's jurisdiction unclear. We would say the better approach is to make clear that the commission's role is to investigate serious or systemic corrupt conduct, as the legislation currently does.</p><p>I reiterate that, as we have throughout, we approach this legislation in the spirit of bipartisanship, and we will support the consensus recommendations of the committee in that regard. The opposition will not be lending its support to either of these amendments.</p> <p class="speaker">David Shoebridge</p><p>SHOEBRIDGE () (): It might be convenient if I briefly speak now to amendment (3) on that sheet as well. First of all, in relation to both amendments (2) and (3) I note that the minister and Senator Cash have referred to the committee's review of this. Of course, these recommendations were not by consensus. In relation to the absence of an express definition of pork-barrelling, both the member for Indi, Dr Haines, and myself, on behalf of the Greens, indicated, and said unambiguously, that given the level of public concern regarding the alleged misuse of billions of dollars of public grants funds there is real merit in expressly addressing this in the definition of corruption. I don't know how clear you can be, but the failure to include an express roping in of pork-barrelling was not by consensus.</p><p>We've seen, in this parliament, billions of dollars of public money being rorted by way of pork-barrelling. I know from my experience in the New South Wales parliament that billions of dollars were rorted there too by way of pork-barrelling. There is real public revulsion about it. We want to be unambiguously clear that the NACC has the jurisdiction to look at pork-barrelling. In that regard, our amendment (3) is simply to put in a notation to the definition of corruption that provides, by way of guidance, that corrupt conduct may include conduct that constitutes pork-barrelling or political donations for the purpose of influencing a decision or policy made by a public official. Of course that should be in and of course the NACC should be able to look at that. I can't understand the resistance of both major parties from expressly including a reference to the corrupting power of both pork-barrelling and political donations. Of course, that would be consistent with the position that was adopted by the crossbench members in the parliamentary oversight.</p><p>When it comes to the removal of clause 8(1)(e), again, it's wrong to state that that was by consensus. On behalf of the Greens, I made it abundantly clear, including in the report, that the definition of corrupt conduct in 8(1)(e) should be retained. And I made the arguments, that you can hear today, that it is not an open-ended definition. It has to be serious or systemic and it has to be corruption.</p><p>What I fail to hear from either the government or the opposition is—the obvious question that's asked when you oppose this definition—what kind of serious or systemic corruption do you think the NACC should be able to investigate? What's the serious or systemic corruption that you think should not be able to darken the door of the National Anti-Corruption Commission? I commend both amendments (2) and (3) to the Senate for those reasons.</p> <p class="speaker">Andrew McLachlan</p><p>Senator Shoebridge, can I ask you to move (3)? Are you happy for me to put the question for both of them at the same time? Otherwise I'll split them.</p> <p class="speaker">David Shoebridge</p><p>by leave—I move amendment (3):</p><p class="italic">(3) Clause 8, page 15 (after line 20), at the end of subclause (1), add:</p><p class="italic">Note: Corrupt conduct may include conduct that constitutes pork barrelling or political donations for the purpose of influencing a decision or policy made by a public official.</p><p class="italic">The CH AIR: The question before the chair is that amendments (2) and (3) on sheet 1730 standing in the name of Senator Shoebridge be agreed to.</p><p></p><p></p><p>The CHAIR (13:19): We now come to sheet 1769, standing in the name of Senator David Pocock.</p> -
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