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Thursday, 10 November 2016
Page: 2545


Senator O'NEILL (New South Wales) (17:29): It is my pleasure and privilege to speak on the National Integrity Commission Bill 2013, which is before us this afternoon.

The ACTING DEPUTY PRESIDENT ( Senator Ketter ): Excuse me, Senator O'Neill. A point of order, Senator Bilyk?

Senator Bilyk: There is a whole lot of noise on the other side, Mr Acting Deputy President. I am finding it hard to hear, even though Senator O'Neill is standing nearly next to me.

The ACTING DEPUTY PRESIDENT: I encourage those senators who are not staying to listen to the debate to leave the chamber quietly.

Senator O'NEILL: The National Integrity Commission Bill 2013, which is being considered this afternoon, is an important conversation that Australians have been having and that they have resolved in a range of different ways in different contexts across the country. If we look at the history of the development of bodies to deal with integrity in public office we can see that over the past 30 years there have been a significant number of anti-corruption bodies established throughout the states of Australia. Being a senator for New South Wales, I can certainly attest to the impact of and interest in the ICAC when it was established in New South Wales. The New South Wales ICAC is just one of the august bodies examining corrupt practices in this country. There is also the Queensland Crime and Corruption Commission and, just to prove that it is not confined to the eastern states, there is the Western Australian Corruption and Crime Commission. In Tasmania there is the Integrity Commission, in Victoria there is the IBAC and in South Australia there is the ICAC. These bodies give rise to an increasing understanding in the community about the importance of holding government in all its forms, and government officials, to account. We would have to say that overall these bodies have been tremendously successful in highlighting accountability issues that relate to good governance.

I know that in my great home state of New South Wales we have had significant activity from the state ICAC with regard to political donations. I live in a hotbed of the drivers of that activity, on the Central Coast, where we had an extraordinary set of circumstances emerge around the washing of money funnelled to the Liberal Party through the Free Enterprise Foundation. Many of those who would be perhaps listening to the parliamentary broadcast or watching us on digital TV would remember the many permutations of the way in which money was taken to support state campaigns but channelled through the federal Liberal Party to prevent it being considered illegal. In fact, the whole set-up of the structure was illegal, and that was all revealed.

What I want to point out is that, while these bodies aspire to sorting out issues of corruption and lack of integrity, there are challenges in establishing bodies that are truly effective. Sadly, in the case of the New South Wales member for Terrigal, Mr Hartcher, and the washing of money through the federal party to avoid the scrutiny of state legislation around electoral donations, there was such a delay in the interrogation and the report that, even though the whole sorry saga and the dirty laundry were revealed in the papers over the course of time, the statute of limitations kicked in and the matter could not be dealt with. I know that, because people on the coast who speak to me are quite disgusted at the way in which the manipulation of this process occurred. They are very concerned that what they thought was going to be an excellent body, the New South Wales ICAC, has been stymied. They feel the ICAC has been played with in a way that has not allowed what the community thinks is justice to be done—in other words, having the conversation with the people who have broken community standards, bringing these things into the public place to have a full and proper discussion and having appropriate action in response, such as having the illegal activities dealt with in a court. That is, sadly, a failing that is very much still alive in the minds and conversations of people on the Central Coast, who ask, 'Why do we have to be tarred, from all the experiences we have had, as a place of corruption?'

We know that, in that context, there was a longstanding Liberal staffer who actually confessed to the independent corruption commission that enormous sums of money donors were being donated, including by prohibited donors—property developers who were right across the coast—in the full knowledge that they were breaking New South Wales law, laundering them through a sham organisation that was called Eightbyfive and the Free Enterprise Foundation before they were passed on to the New South Wales Liberal Party.

The scale of this, despite the fact that the Independent Commission Against Corruption existed, was such that there were 11 state New South Wales Liberal politicians who were forced to resign. Now, those opposite like to point to corruption—and I will call it wherever I see it in any context, whether it is in any political party, in any corporate organisation, in any non-corporate organisation. Wherever corruption happens it should be called.

There is a very important purpose for these bodies that are established to raise awareness about it—to respond to it—but they are not perfectly formed. Sometimes, in their haste to advance a political cause, we have seen legislation advanced by the Greens that just does not have the desired outcome that they articulate here in this place. That is because there has been a failure to consider the unintended consequences of the legislation they bring forward. That is why we cannot really support this legislation. I do think that it is flawed and I think it does not deal with the complex realities of establishing a national body.

We know that there has been a significant embarrassment to one of our colleagues here in the chamber, the federal Liberal senator and former Assistant Treasurer, Senator Sinodinos, who was stood aside by the Prime Minister in the course of this Eightbyfive-Free Enterprise Foundation fiasco that was considered by the ICAC. Indeed, in reports there were damning comments. I refer in particular to an article by Neil Chenoweth in The Fin Review who said:

Any investigation of NSW state finances inevitably involves some scrutiny of federal fund-raising. It's done by the same people, the same structures, there are constant crossovers.

Given the fact that we have these bodies that I have referred to—the New South Wales ICAC, the Queensland Crime and Corruption Commission, the Western Australian Corruption and Crime Commission, the Tasmanian Integrity Commission, the Victorian IBAC, and the South Australian ICAC—one has to question: what is the purpose of a duplication of these bodies, which are at a level that is closer to the political activity of the people of those states, and an unnecessary impost of another layer of regulation over the top of those state bodies? That is not to say that Labor will not at any point in time consider a federal independent commission against corruption. In principle Labor has never objected to such a body. But the question remains as to the case for such a body and also, as I alluded to just a little while ago, the outcome of making a decision to establish such a body without sufficient consideration of unintended outcomes from such a body.

We have a series of protections that are already in place, which include a number of federal integrity agencies. People would be familiar with the Australian Commission for Law Enforcement Integrity, who have the task of working to counter corruption in federal law enforcement bodies, and they do that work very seriously. They are funded to achieve those outcomes, and their hard work is a matter of public record now. We also have the ombudsmen structures and the Auditor-General. The ombudsman, which is perhaps more familiar to ordinary Australians, who might not have anything to do with the federal parliament, is a critical set of checks and balances that sit outside the court system—but in partnership with it to a degree—to provide a place for people who have important matters that need to be resolved but who do not have either the will, the desire, the financial capacity to have matters dealt with by a court, or for people who just want to deal with them on a more human-interaction level by going to the ombudsman and getting matters resolved. The ombudsman also deals with the reports of people who have been exploited, and they become points of awareness-raising for the whole of that state body about points of pressure in the system, and there can be a response at that state level. So ombudsmen, federal and state, do exist.

When I first came to the parliament in my role in the House of Representatives as the member for Robertson, I felt extremely privileged to sit on the Joint Committee of Public Accounts and Audit. In the course of my work through the 43rd Parliament, I was able to see the work of the Auditor-General in action. What an amazing contribution the Auditor-General makes to our public life here. The care and independence of that body is really important in enabling us to have clear oversight of the expenditure of government moneys. I believe that the vital role that the Auditor-General plays is something that needs to be considered as part of any suggestion for a federal ICAC. The two bodies that I have just been speaking a little about—the ombudsman and the Auditor-General—clearly have very significant oversight over federal administration and expenditure, but they are complemented by the Inspector-General of Intelligence and Security, which oversees the federal bureaucracy. There are three significant bodies that are already reporting frequently, certainly annually, on what they find, and that gives the capacity for this place—the chamber opposite and the Senate—to respond to matters of concern that they raise.

Of course, here in Canberra we see slightly different police cars from those over the border in New South Wales. The AFP, the Australian Federal Police—our national police—and the Commonwealth DPP investigate criminal misconduct in government. They are more agencies that are dedicated to the task of carefully monitoring and responding to any corruption or matters that reveal a lack of integrity in the federal space. While we have those bodies, I guess we could always say there is more work to do. The Australian Labor Party, when in government, certainly looked to enhance the integrity of the work that is done at the federal level. When we were last in government, we took important steps to make sure that we did do that work of enhancement. There was a change to the ministerial standards under Labor to more explicitly articulate not just the behaviours of the ministers but an ethical standard that goes to a principle based model of making sure that people choose in the interests of whom they serve, in a way that exists not just within the boundary of the law. That is, a predisposition to choose ethical behaviours over behaviours that lack integrity. That is really what the Australian people expect of us.

One of the concerns that I have is that bodies such as ICAC and other bodies that gather evidence about observed behaviours deal with the consequences of bad behaviours, but we need to invest not just in the cleaning up of bad behaviours but in the preparation of people for public life, in public office and in service, through the Public Service—to choose ethnically, to discern ethically, not just to live within the boundaries of rules that are articulated. There has been some debate this week. My colleague who has taken her place in the Senate—and I expect she may speak after me—Senator Pratt, in her questioning of Senator Brandis, asked about interpretations of the word 'consultation'. In the conversation that happened in this place this week, we can see a miserly mess of a view of what ethical behaviour should look like and a determination to play word games, trying to stay within boundaries that were arbitrarily constructed after the fact, just to excuse what we would consider on this side absolutely unethical behaviours.

In addition to establishing ministerial standards, Labor in government introduced a lobbying code of conduct and a federal lobbyist register. We saw in the papers just last week concerns about former ministers of the Abbott-Turnbull government who, too quickly for public taste it would seem, have gone to lobbying roles that were clearly linked to their previous ministerial responsibilities. These are things that go to the heart of people's decision-making about what they think is fair and just. I question whether the threat of a federal ICAC body would be enough to prevent somebody who is of such a mind from going ahead and undertaking behaviours that, for most Australians, would be considered inappropriate or, further along the scale, actually misconduct.

While in government at a federal level, the Labor Party expanded the powers of ACLEI, we introduced whistleblower protections for those who were disclosing government wrongdoing, and we sought—and we continue to seek—to improve transparency over political donations. As I said in my opening comments, coming from the state of New South Wales and seeing the nature of outrageous behaviour that was characterised by Mr Chris Hartcher, the former member for Terrigal, and people on his staff who actively went out to construct a really aberrant model of cleaning up money to get back into their campaigns for the Central Coast and the Hunter Region, I sincerely wonder if we can see the impact of a federal ICAC body in preventing such behaviour.

The reality is that there are people for whom there are no boundaries and who will take any advantage that will suit themselves and their immediate purposes, and they are in every sphere of life. Serious questions of significant corruption in the federal sphere are, of course, open to the full suite of measures that we might need to restore public trust. As I said, Labor is not averse to the consideration of an anticorruption body, but it needs to be very well considered, it needs to be carefully constructed, and it needs to be something about which there would be general and generous agreement right across this chamber.

I believe that this bill that is being put forward by the Greens party is premature, for some of the reasons that I have just outlined, not because corruption has never been part of the fabric of our society and not because it will not come into the future. But, if we are genuinely going to deal with this issue, we need to, as I said, have a greater agreement about what it actually should look like to prevent unintended outcomes. We also need to have a much more careful look, with the states, at how some integrated body might be established that would give sufficient space, power and status to those bodies that already exist at state level and to learn from the failures of state bodies. I described the work of ICAC in New South Wales a little earlier. It is one thing to document the Eightbyfive scam, the Free Enterprise Foundation and the laundering of so much money for the Liberal Party, through the national office back to the state, that the scale and the audacity of it really take your breath away. Having an ICAC body does not necessarily prevent those behaviours, and we need to attend to that reality.

In closing, can I say that there are serious problems with the current bill as it is constructed. There are three elements to this bill. One is a federal ICAC body based on the New South Wales model, and I hope my comments this afternoon have highlighted that the existence of such a body, in and of itself, does not necessarily mean that it can do the work that the community asks it to do. What it achieves in terms of criminal conviction of people who break the law is something that is very much still in question for the people of the Central Coast, who have seen a damning ICAC finding yet a failure of the capacity to implement any penalties for those who perpetrated that great misuse of public office and the power and authority that it has.

The Australian Commission for Law Enforcement Integrity, ACLEI, in its present form is part of this bill, as is the independent parliamentary adviser to advise MPs on ethics and entitlements and to develop a parliamentary code of conduct. But, just like the establishment of an ICAC, the creation of an independent parliamentary adviser is not necessary good policy in general. In New South Wales, there was an ethics adviser who was in fact employed to undertake that role. Notionally, what a wonderful idea that is. But the reality was that they were never consulted. That goes to what I was saying about the need for an induction into a deep understanding of the place of an ethical disposition in the principles based management and responsible use of public office. I do not believe that this bill deals with that.