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Monday, 26 November 2018
Page: 11336


Mr PORTER (PearceAttorney-General) (12:16): I thank members for their contribution. The question of how any government or any parliament might improve the integrity framework at a federal level is a live question and one that should be under constant review. There are potential paths forward that could mean real improvement in that area.

The member for Melbourne has just put to this parliament that the crossbench—and the member for Indi, in particular—have put on the agenda what he described as a working model. In the short period of time that's available, I want to point out to the House a number of reasons why this is an area for the most sober and cautious consideration. I mean no disrespect to the member for Indi in raising some of the issues I'm about to raise. The member for Indi has gone to some effort, at least, to propose a model in great detail, which can be the subject of debate and further consideration. The Leader of the Opposition has talked about design principles. They are of the most scant, vague and, might I say, unconvincing type. Labor have had 12 months to consider this, and coming up with the fact that there will be two deputy commissioners is hardly a massive amount to show for 12 months work. But what demonstrates—

Opposition members interjecting

The DEPUTY SPEAKER: Order!

Mr PORTER: What demonstrates why this requires time and effort is the fact of what the bill that is now before this parliament does. Every member opposite should have absolutely perfect understanding of what the bill now before this parliament does. Under the bill, which the member for Melbourne proposes to be a working model, any public official who did anything that could be said to impair public confidence in public administration—even if that conduct were so minor as to only constitute an administrative irregularity that had some form of employment or disciplinary outcome attached to it, or even if that conduct gave rise only to the most minor civil outcome—would be declared corrupt. Hundreds of thousands of civil servants would potentially be declared corrupt for the most minor of matters.

Let me describe to the House how the bill that has been tabled by the crossbench would work. Under section 9, 'any conduct of any person' that, 'directly or indirectly', affected the impartial exercise of functions of any person or group in the Public Service would be, prima facie, corrupt; anything that any public official did that was a partial exercise of the public official's function would be, prima facie, corrupt; anything that constituted a potential breach of public trust would be, prima facie, corrupt; and any other conduct that could impair public confidence in Commonwealth public administration would be corrupt. That is, so long as any of those four standards met the additional standard that they represented any type of civil liability offence, no matter how minor; or any disciplinary offence, which might include any conceivable form of 'misconduct, irregularity, neglect of duty, breach of discipline or any other matter that constitutes or may constitute grounds for disciplinary action'; or any other reasonable grounds for an employment dismissal; or any conduct where grounds for arguing a substantial breach of an applicable public sector code of conduct existed. If you affected an impartial exercise of the functions of persons of a group in the Public Service; if you, as a public officer, partially exercised your functions; if you breached the public trust; or if you impaired public confidence in the Commonwealth public administration—if any of those four things were said to exist, and even if they represented only the most minor civil penalty or irregularity, that would be declared corrupt conduct.

For example, any public official that it could be argued behaved in a way that constituted a breach of public trust or impaired public confidence in public administration would be liable to a finding of corruption, even if that behaviour otherwise would only have given rise to a small fine or it was an administrative irregularity or there was some breach of discipline or other conceivable form of misconduct. Any public official who did anything that could be said to have impaired public confidence in the public administration of the Commonwealth, even something so minor as to only constitute an administrative irregularity, under this bill that public servant would be corrupt.

Have a moment's thought about what that would actually mean in practice. One recent example springs to my mind. In October 2017, Andrew Probyn, a public servant, an employee of the ABC, described the member for Warringah as the 'most destructive politician of his generation'.

Mr Stephen Jones: Seconded!

Mr PORTER: Before you second it, you might want to determine whether or not you want to go to jail for corruption.

Opposition members interjecting

Mr PORTER: If you don't think this is a real issue, just consider this. Andrew Probyn described the member for Warringah in that way. A complaint was made to ACMA and ACMA found that Andrew Probyn had breached standard 4.1 of the ABC Code of Practice due to impartiality. Under this bill before the House—no ifs, ands or buts—Andrew Probyn would be found to have committed corruption.

Opposition members interjecting

Mr PORTER: Read the bill. With absolute clarity, that's what would occur under the terms of the bill that is now before the House. If anything demonstrated the need for enormous caution in pursuing this type of issue, it would be the fact that misdrafting can have such a massive overreach in this area. Any ABC journalist or SBS journalist, as a public servant and public official, who criticised the government in a way that demonstrated impartiality, that breached a code of conduct, that was perhaps found to have constituted contempt or defamation and attracted a civil penalty—under this bill, the very definition of 'corruption' transforms matters of civil import, such as defamation, such as a breach of a code of conduct, into a finding of corrupt conduct.

That's what the bill before us does, and that demonstrates why, in an area like this, an abundance of caution is absolutely necessary. For instance, last year at the AFP there were 922 conduct breaches that were finalised—922 conduct breaches—and 45, under present definitions, were found to be corruption. All of the remainder of those conduct breaches are highly liable to be referred under a model like this for a finding of corrupt conduct. These are matters that are dealt with in an employment based context, sensibly and soberly, at the moment.

There are eight codes of conduct across the public sector for a variety of departments and agencies. If you transform breaches of those codes of conduct that impair public confidence in the Commonwealth, which frankly could be just about everything—

Ms Butler: Ask someone in the construction industry how they feel about this.

The SPEAKER: The member for Griffith is warned!

Mr PORTER: you are ensuring that what are minor civil matters and employment matters at the moment in the Commonwealth public sector will move to the realm of corrupt conduct.

All you need to do is read what is before this parliament to understand how excessive and how dangerous it is. Let me note also that the most astonishing thing about this bill is that everything that I have described has retrospective application. A civil servant who had engaged in a minor breach of a code of conduct in their department many years ago that had been dealt with internally but, nevertheless, could be said to have impaired public confidence in the conduct of Commonwealth affairs would, many years later, find themselves potentially referred and possibly the subject of a finding of corruption.

Anyone who has observed this area would have seen, in New South Wales, Western Australia and Queensland, decent, hardworking public servants the subjects of findings of corruption which were not based on fact, which were found to be false due to errors inside the types of bodies that we are now contemplating. Those men and women had their careers utterly ruined based on no good fact and no good process. This is the time for the most sober and sensible process that we can engage in. That, I am very sad to say, is not indicated in the bill that we have before us today.

The SPEAKER: The question is that the motion be agreed to. Before I call the Deputy Leader of the Opposition, I want to remind members on both sides that this is not question time, where there is a tolerance, to a degree, for interjections. This is normal debate. If they interject as if it were question time, they'll be dealt with as if it were question time.