The peak body representing Australian lawyers has warned a joint select committee to give careful consideration to new laws establishing a national anti-corruption watchdog, in particular, to the extension of investigative powers to cover wrongdoing that is yet to occur.
Appearing before a hearing about the creation of National Anti-Corruption Commission (NACC) legislation, the Law Council of Australia’s Tass Liveris said key definitions in the proposed instrument should be clarified.
The LCA’s recommendation included a requirement that a corruption investigation only be undertaken if the NACC had a “reasonable suspicion” the issue involved corrupt conduct which was serious or systemic.
“One of our most serious concerns with the legislation in its current form is its capacity to abrogate well-established common law rights including legal professional privilege and the privilege against self-incrimination,” Liveris said.
“Linked to this is our opposition to individuals who have been charged or are about to be charged in a criminal matter being required to answer questions or provide information for a NACC investigation. This places a person’s right to a fair trial at risk,” he said.
To preserve the distinction between the commission’s investigative nature and the criminal justice process, the LCA has also called for active investigations to cease once matters were handed over to prosecuting authorities.
Additional law reform was needed to better protect whistleblowers, Liveris said, noting they would likely play a vital role in exposing public sector and government corruption.
While the LCA president said he supported powers that would allow the Commission to examine corrupt activities which had taken place in the past, or were currently occurring, the line should be drawn at investigating potential future conduct.
“We commend the Commission’s remit to investigate serious or systemic corrupt conduct across the Commonwealth public sector and its preventive and educative functions.
“[But] we don’t believe this should be extended to investigating and potentially penalising individuals for conduct they might engage in at a future date,” Liveris said.
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