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senate vote 2024-10-10#9
Edited by
mackay staff
on
2024-10-20 11:20:21
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Title
Bills — Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024; in Committee- Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024 - in Committee - When NACC hearing may be held in public
Description
<p class="speaker">Jacqui Lambie</p><p>by leave—I move amendments (1) and (2) on sheet 2979 together:</p>-
- The majority voted against [amendments](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7172_amend_4995f4fd-a275-43e5-ad59-29a884c7524a%22;rec=0) moved by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent) and Tasmanian Senator [Jacqui Lambie](https://theyvoteforyou.org.au/people/senate/tasmania/jacqui_lambie) (Jacqui Lambie Network), which means they failed.
- ### Amendment text
- > *(1) Clause 2, page 2 (at the end of the table), add:*
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- >> *8. Schedule 8*
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- >> *The day after this Act receives the Royal Assent.*
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- > *(2) Page 90 (after line 10), at the end of the Bill, add:*
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- >> *Schedule 8—National Anti-Corrpution Commission Hearings*
- >>
- >> *1 Subsection 73(2)*
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- >>> *Repeal the subsection, substitute:*
- >>>
- >>> *(2) The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that it is in the public interest to do so.*
- >>
- >> *2 Subsection 73(3)*
- >>
- >>> *Omit “may”, substitute “must”.*
<p class="italic">(1) Clause 2, page 2 (at the end of the table), add:</p><p class="italic">(2) Page 90 (after line 11), at the end of the Bill, add:</p><p class="italic">Schedule 8 — Penalties imposed by the Parliament</p><p class="italic"> <i>Parliamentary Privileges Act 1987</i></p><p class="italic">1 Subsection 7(5)</p><p class="italic">Repeal the subsection, substitute:</p><p class="italic">(5) A House may impose on a person a fine:</p><p class="italic">(a) not exceeding 50 penalty units, in the case of a natural person; or</p><p class="italic">(b) not exceeding 250 penalty units, in the case of a corporation;</p><p class="italic">for an offence against that House determined by that House to have been committed by that person.</p><p class="italic">(5A) The Consolidated Revenue Fund must not be appropriated for the purposes of paying a fine imposed under subsection (5).</p> <p class="speaker">Michaelia Cash</p><p>These amendments seek to change the existing penalties in the Parliamentary Privileges Act. Essentially, these amendments would replace the existing penalty units and penalties, roughly triple the existing $5,000 penalty for individuals and quadruple the existing $20,000 penalty for bodies corporate. Amendment (2) also says that any such penalty cannot be paid out of consolidated revenue.</p><p>The potential second-order effects of that change are not clear to us. It is not immediately apparent which other acts would interact with this particular amendment, and the circumstances in which those interactions may or may not occur—for instance, how would this particular amendment interact with a fine paid by a person who receives an allowance or a subsidy from the government?</p><p>In terms of changes to the Parliamentary Privileges Act, these are things that I'd say all parties in the Australian Senate obviously take very, very seriously. The reason is that it is an act which entrenches parliamentary sovereignty and regulates the relationship between the branches of government. It is the reason, as we all know, that we're all able to stand in this place and say whatever we need to say in support of our constituents, the reason that the witnesses before our committees are able to speak freely, without fear of being called before the police or the courts, and it is also fundamental to our democracy. So, when changes to the Parliamentary Privileges Act are being put forward, we do need to very seriously consider them. We need to very seriously consider the implications of them but also what the interactions with other pieces of legislation will be. And we can't make any apologies for being cautious in this regard.</p><p>On this particular issue, the decision to have a specific listed penalty instead of penalty units wasn't actually a drafting error; it was deliberate. The penalties were set in 1987. Just five years later, in 1992, we changed the Crimes Act to introduce the penalty unit regime, including a mechanism to convert fixed penalties into penalty units. But, at that time, we specifically excluded penalties that were not handed down by the courts—for those who are interested, that is subsection 4AB(2) of the Crimes Act. That was debated at the time. It was considered by the parliament. It is quite clear that it was a deliberate decision to treat penalties handed down by the parliament differently.</p><p>It might also be unsurprising that we would treat penalties under the Parliamentary Privileges Act differently because they are the result of what is a fundamentally different process. A person receiving such a penalty has not been convicted by a court. They don't have all the usual protections that apply in judicial proceedings, such as the presumption of innocence, rights around procedural fairness and the ability to appeal or ask for a review of a decision. Penalties handed down under the Parliamentary Privileges Act, which senators would be aware does include penalties of imprisonment, are decided by the houses of the parliament themselves, according to procedures they determine, and are fundamentally unreviewable by any other body.</p><p>So, when it comes to a proposal—in this case, it is amendments to a piece of legislation that is now in committee stage before the Australian Senate—to lift the penalties that can be imposed by this place, we do need to proceed with caution. As I said, in this regard, we have not had the time yet to actually properly analyse what could be the flow-on effects from these amendments. On that basis, the opposition won't be supporting them.</p> <p class="speaker">Murray Watt</p><p>The government will also not be supporting the amendments. The government is not currently proposing any changes to the penalties that may be imposed by the houses under section 7 of the Parliamentary Privileges Act 1987. Neither the Senate nor the House of Representatives has imposed a financial penalty in living memory, so, from the government's point of view, we don't believe that the case for the amendments has been made out in practice. If there were a future circumstance where the financial penalties under the Parliamentary Privileges Act were considered inappropriate, the houses may enforce the observance of their privileges and immunities and punish people found guilty of contempt, including a commitment to prison.</p><p>Question negatived.</p> <p class="speaker">David Pocock</p><p>by leave—Please note my support for that amendment.</p> <p class="speaker">Lidia Thorpe</p><p>by leave—Mine too, please.</p> <p class="speaker">David Shoebridge</p><p>by leave—On behalf of the Greens, I ask the same.</p> <p class="speaker">Tammy Tyrrell</p><p>by leave—I would like my support noted as well.</p> <p class="speaker">David Pocock</p><p>by leave—I move amendments (1) and (2) on sheet 2961 together:</p><p class="italic">(1) Clause 2, page 2 (at the end of the table), add:</p><p class="italic">(2) Page 90 (after line 10), at the end of the Bill, add:</p><p class="italic">Schedule 8 — National Anti-Corru p tion Commission Hearings</p><p class="italic">1 Subsection 73(2)</p><p class="italic">Repeal the subsection, substitute:</p><p class="italic">(2) The Commissioner may decide to hold a hearing, or part of a hearing, in public if the Commissioner is satisfied that it is in the public interest to do so.</p><p class="italic">2 Subsection 73(3)</p><p class="italic">Omit "may", substitute "must".</p><p>This bill amends the NACC Act, and I have a couple of questions about the NACC. During the committee process into what is now the NACC Act, the committee heard overwhelming evidence from experts that the discretion of the NACC commissioner to hold public hearings should not be curtailed. In fact, the committee heard evidence from commissioners from state integrity commissions that it should be the case that there should be a presumption towards having public hearings. This was put forward to ensure that we have public trust in the NACC and ongoing recognition of the work that it's doing, that it is seen as an institution that not only is important but is undertaking continuous work and that there is some sort of visibility of what is happening.</p><p>We see that the Labor Party sided with the coalition to set up the legislation in a way that we have no real oversight of what is happening in the NACC. There's a presumption towards having private hearings. Yes, they report from time to time, but we've seen recently, since the NACC was established, some real concerns being raised, particularly in relation to the robodebt matter. I acknowledge that the inspector-general, which I thank Senator Shoebridge and members of the crossbench for pushing so hard for, is considering this matter. Public confidence has clearly been shaken, and public confidence in the NACC is incredibly important. This amendment would ensure that we do have public hearings—that the NACC is able to hold them and hold them not just when they think there are exceptional circumstances. Minister, has the government reconsidered the unnecessary limit on the ability of the NACC to conduct public hearings to only where there are exceptional circumstances?</p> <p class="speaker">Murray Watt</p><p>The short answer, Senator Pocock, is no. I will outline at this moment the government's position on this amendment: we won't be supporting the amendment. The reality is that the National Anti-Corruption Commission does have the discretion to hold public hearings under the existing law. The commissioner can hold the hearing or part of a hearing in public if satisfied that it is in the public interest and exceptional circumstances justify doing so. The commissioner may consider a number of factors outlined before deciding to hold a public hearing, including the seriousness or systemic nature of the corrupt conduct and any unfair prejudice to a person's reputation, privacy, safety or wellbeing that would likely be caused if the hearings were held in public. Also, they can consider the benefits of exposing corrupt conduct to the public and making the public aware of corrupt conduct. From the government's point of view, this provides an appropriate balance between the benefits of public hearings and the potential for prejudice to subsequent criminal prosecutions, reputations, safety, privacy, wellbeing or confidentiality.</p> <p class="speaker">David Pocock</p><p>Thank you, Minister; I appreciate your response. Does the government accept that failure to reconsider the unnecessary condition of exceptional circumstances—it was pointed out during the very extensive hearings that this as an incredibly high bar and witnesses said that, if you go with this, there will basically never be public hearings—is out of line with what experts presented to the committee and, most importantly, out of line with community expectations when it comes to the National Anti-Corruption Commission?</p> <p class="speaker">Murray Watt</p><p>I'm very much aware that there are members of the public and experts—a range of people—who have supported broader public hearings than what are being provided for, but I'm confident that the government has made the right decision in allowing public hearings to occur if the National Anti-Corruption Commission believe that's necessary and, importantly, if they're satisfied that, firstly, it is in the public interest to do so and, secondly, exceptional circumstances justify doing so. As I said, we believe that provides an appropriate balance between the benefits of public hearings that can arise in some circumstances and be made available in some circumstances and the potential to prejudice subsequent criminal prosecution, reputations, safety, privacy, wellbeing or confidentiality.</p> <p class="speaker">David Pocock</p><p>Minister, does the government accept that the change proposed in this amendment would improve public confidence in the NACC?</p> <p class="speaker">Murray Watt</p><p>I'm not sure that I would accept that. I know that there are people who express that view. There are people who express different views. We think that we've struck the right balance.</p> <p class="speaker">David Pocock</p><p>Minister, do you really think that the majority of Australians are happy with the NACC holding all of their hearings in private and that having more transparency is not a good thing?</p> <p class="speaker">Murray Watt</p><p>Again, the commissioner does have the discretion to hold a public hearing. Senator Pocock, with respect, I think the way that you're presenting the argument suggests that there's no power to hold a public hearing. That's not the case. The commissioner is independent of government. We have confidence in them to make the right decisions based on the evidence before them as to whether a public hearing is warranted, taking into account the public interest and the exceptional circumstances that would justify doing so.</p> <p class="speaker">David Pocock</p><p>I accept that you are incredibly skilled at this. When you say that the commissioner has the ability to have a public hearing, yes, that is correct, but the parliament, as you've outlined, sets out the circumstances in which that may happen. Currently, we have a NACC where you have to meet an incredibly high bar. Numerous witnesses warned the committee that this will essentially mean that there are almost no circumstances that meet all of the criteria. Whilst it may be possible, the practical outcome is that it's very rare and very unlikely to happen. It seems to me that we actually need to be building up trust in our institutions, and I'm hearing from so many people I represent, who say, 'We want more transparency not less.'</p><p>What's the argument for this? I accept you say that you've struck the right balance, but why aren't we allowing the commissioner—if we trust them so much, and I think there should be a high level of trust in the commissioner—to have a neutral presumption and that it's totally up to the commissioner? If the commissioner thinks that this is in the public interest, then they can hold a public hearing. That to me aligns with the rhetoric I hear about trust in the NACC and the independence of the NACC. If we really believed that, we would say: 'We trust you. We believe we have put very good people in there who are well qualified to do that job, and it's up to you. If you think it's in the public interest to hold a public hearing, you do it.' But that's not what we've done. We've said: 'We trust you. We should be saying to Australians, "The NACC is doing important work," which we believe it is, but also, even if you think it's in the public interest, you have to also meet all these other criteria, including exceptional circumstances.'</p><p>I'm just interested why, on the one hand that you think they're independent, that we trust them and that it's up to them, but on the other hand that we're almost hamstringing them a bit? They're hamstrung to actually make a decision because they have to meet these criteria. Those things don't seem to square to me.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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