Where’s the sunshine? … Citizens want to see their crooks in the stocks … Coalition demands further constraints on public hearings … The hurdle is already unnecessarily high … What reputational damage? … Max Shanahan reports 

Having asked for – and received – limitations on public hearings in exchange for support of the Bill, the Opposition has continued to demand further restrictions on the ability of the NACC to hold open hearings into allegations of official impropriety. 

As it stands, s.73(1) of the NACC Bill provides: 

“A hearing must be held in private, unless the Commissioner decides not to hold the hearing, or part of the hearing, in public.” 

Section 73(2) holds that the Commissioner may make such a decision only if satisfied that “exceptional circumstances” justify it and that it is in the public interest to do so. 

Because of the presumption against public hearings the hurdle is set high against evidence being heard in the open.

There is a similar presumption in Victoria’s legislation for the Independent Broad-based Anti-corruption Commission – hence, Premier Daniel Andrews is afforded interviews in private about branch stacking within the Labor Party, misuse of public resources and corrupt land deals.  

Intriguingly, the Mental Health Act, NSW, has a much lower hurdle, with a presumption in favour of public hearings at the Mental Health Review Tribunal. It may make an order for a private hearing it is satisfied it is desirable for the welfare of a party whose case is being heard, or for any other reason. 

Similarly, for the NSW Civil and Administrative Tribunal, the presumption is for hearings in public, unless there are confidential issues at stake. 

The threshold for NSW’s ICAC – and a host of other state and territory anti-corruption bodies  – is also much lower. Under the ICAC Act, public hearings may be held if the Chief Commissioner and at least one other commissioner are satisfied such a course is in the public interest. 

Putting aside NSW’s hard-earned and proudly-held reputation for crookedness and corruption, the effect of these different legislative standards is clear. 

Between 2012-13 and 2019-20, the NSW ICAC held 42 public hearings, compared to a mere eight from its Victorian counterpart. 

In justifying the limitations, attorney general Mark Dreyfus fell back on privacy and reputation issues:

“Public hearings are more difficult to conduct. They raise questions about reputational harm which are not found when you have private hearings, and that’s why most of [state] commissions’ work has been done in private.” 

Certainly, reputational risk and the potential stain of the public airing of unsubstantiated allegations must be factored into any such investigation. 

Yet, it’s by no means certain that ICAC in NSW has inflicted any undeserved repetitional harm. Where Chris (The Tamil) Merritt, from the Law of Rulers Institute, insists that reputations have been unfairly trashed, the Centre for Public Integrity finds no such thing. 

For good measure, there’s more repetitional blight about the delightful Charif Kazal, another of the campaigning Tamil’s hard-done-by favourites. 

Gary Sturgess, the birth father of NSW’s ICAC, argues that Royal Commission hearings overwhelmingly are in public, so why should politicians have different rules? 

The public interest test of ICAC and other bodies has hardly lead to a reign of terror on Elizabeth St. During the same period in which it held 42 public hearings, the NSW ICAC also held 979 private examinations. 

Maybe, the large number of private examinations skews the numbers and allows Dreyfus to spruik the claim that only four percent of ICAC’s investigations are in public. 

Even though a lower requirement for public hearings would have appealed to the Greens, Teals and other Independents, Dreyfus adopted Victoria’s maligned standard as an olive branch to Peter Dutton & Co – though one can assume Labor grandees won’t be too displeased at this bar to public exposure. 

Greens justice spokesperson David Shoebridge landed an accurate blow:

“[The bill] ignores the fact that sunshine is a great disinfectant … [and] it is designed not just to appease the Coalition … but also some of those voices in Labor who have always wanted to limit the reach of the NACC.”

Critics of Dreyfus’ Bill have not yet put their finger on the potential abrogation of personal rights if there is a preponderance of hearings under cover of darkness. 

We would never know the extent of bullying behaviour by commissioners and counsel. At least when hearings are out in the daylight there is a check on abusive, Star Chamber tactics. 

The Law Council has let its thoughts be known, calling for the NACC “to be empowered to hold public hearings where a closed hearing would be unfair to the person or contrary to the public interest …” 

The activities of the parliamentary committe examinging the NACC legislation can be tracked here. 

Having plumped for the Coalition over crossbench support, Dreyfus has to deal with sorties from the Opposition’s bridgehead on public hearings – i.e. “show trials”. 

Despite his leader saying only a few days ago that the bill “got the balance right”, shadow attorney general Julian Leeser has since said the public hearings threshold should be raised above the already restrictive “exceptional circumstances” test. 

Now, the Coalition says, a superior court judge – rather than the Commissioner – should have the power to determine whether a hearing is to be public:

“We have seen the way in which public hearings can impact people over the past 30 years … [A judge] would be divorced from the necessity the commission may feel to demonstrate it’s doing its job by having public hearings.”

Should we be wary of institutions demonstrating they are doing their job?