Can I just also put on the record that I served with Dr. Helen Haines on the Joint Select Committee, which looked into the legislation and gave recommendations on the legislation, which actually established the NAC, and Dr. Haynes made an outstanding contribution to that joint select committee, which should be recognized. In terms of definitions of corrupt conduct, there is a difference, isn’t there, between the definitions under the New South Wales legislation and the federal legislation, and to what extent does that impact the analysis of grant programs such as this and corruption issues related to the issue of grants?
There are slight differences between the definitions across all the commissions. One day, I would like to do a harmonization program and get us all to just have one definition of corrupt conduct in Australia. So I put that on my wish list. The New South Wales provision and our provision are pretty similar, so they are drafted slightly differently, but they still are saying the same things about what can be corrupt conduct is adversely impacting a public official in the performance of their functions, duties, powers, which really deals with the people, like sort of outside actors who try to get people to act corruptly, breach of public trust, abuse of office, and misuse of official information. Some of the anti-corruption commissions then also have thresholds around it has to be a criminal, a relevant criminal offense before you’re allowed to do anything with it. But New South Wales, ICAC, and ourselves don’t have that that threshold. And my understanding is the IBAC legislative changes that have just gone through the Victorian Parliament have removed that barrier to some of what IBAC was or wasn’t allowed to do. So the provisions are broadly the same between New South Wales ICAC and us. So the analysis in that New South Wales pork barrelling report is applicable, and it’s also because it’s the case law as well. So so some of that case law. So Anne Toomey mentioned Lord Bingham yesterday. I’m not going to quote Lord Bingham at you, but some of that case law out of Britain is also applicable, and so it doesn’t really matter about which definition we’re working with because it’s common law case law that applies to how we judge what is or isn’t conduct. If that makes sense.
Yep, does. Thank you, Miss Kilgore. You said that there are a number of things which piqued your interest in relation to in relation to our hearing, and and that reference that use of that phrase piqued my interest as to what piqued your interest.
I think
so. So what has piqued your interest?
What just piqued my interest was the questions you were just putting to finance about the the constitutionality issue because up until now, everyone has been saying to me it’s not a constitutional issue, but there seems to be some issue about when the constitutionality problem got fixed. So that was what I was really referring to was what just got said this morning.
Okay, so just just to flesh that out a bit, the the issue seems to me that the program guidelines were released on one September without the constitutional issue being fixed. They were made public, and then sometime after the event, it was an addendum was agreed that was then released publicly, and the issue I was trying to get to the bottom of was whether or not the Department of Finance had given advice to the Department of Infrastructure that that issue was live prior to the Department of Infrastructure deciding to publish the guidelines, which would be a concern to me. Is that the is that the nature of the issue that piqued your interest?
Yeah. Well, that was new information that I just heard when I came in. So I was like, oh, that’s different to what I understood. So, I’ll be interested to hear more information about what happened there.
Okay. Have you had a chance to read the Center for Public Integrity’s report.
Yeah, I read it. So I work quite closely with Dr. Williams from the Center for Public Integrity. We talk to each other quite regularly about issues, and so I’m pretty. I can’t remember whether I read that report after media reporting or whether I think I’m on some Center for Public Integrity emails, like where they send out their new publications, but I would have read it sort of in early September when it came out.
Okay, did anything in that report pique your interest?
Well, the the general sort of policy question that they raise about you know how do you make sure that we are only giving grants for proper purposes. That of course, like that, does pique my interest, and and the recommendations that they make at the end of their report about you know should there be legislation, should there be some sort of different oversight over grants making? I think those are all relevant issues to be thought about, but like I said, they weren’t saying that report didn’t make me go. Oh, I need to stand up a own motion investigation today.
Okay, I was interested in your in your answers to Senator McKenzie and and to other members of the committee in relation to this issue of what is the the driving motivation or intention behind the decision to issue a grant and if it’s in the public interest but there’s I think the phrase you use was side wind is is is political advantage is that is that is that how you put it yeah and that I can’t remember which threshold
I can’t remember which case that’s in, but it’s definitely in that chapter in the New South Wales ICAC report, and I can’t remember whether it was one of the lords in the UK said that in one of his cases.
Okay,
but there’s some case law about that that says if you know if there’s a sort of side wind benefit, that’s not going to be in the land of conduct.
So how do you how do you determine whether or not something’s the predominant motivation? I mean, I’m not sure how to assess a side wind, whether it’s a gale or a soft breeze. But how do you determine whether or not something something so material as to as to cross cross the threshold. How do you do that practically? What sort of evidence are you looking at?
So, under the NAC Act, we have coercive hearing powers. We have powers to summons documents. We have powers to request people to give us information. We have powers to, in certain circumstances, we can get warrants and telephone intercepts and that sort of material. So
how do you practically? This will be my last question. How do you practically dissect
the
motivation for a public, for an official, a politician, a candidate for political office doing something when, in the vast majority of cases, a promise or election commitment will have some sort of public interest. It’s giving a benefit to. It’s almost necessarily giving people in the public a benefit, or it’s removing a detriment. But on the on on the other hand, the flip side is that by its very nature, that promise will will attract the interest of prospective voters. So, how how do you work out if if something is is is more than a side wind? What what are you actually looking for? What what’s the indicia, if I can put it that way?
Well, we it would we would go through an investigative process, and so it would be a combination of like, do the documents demonstrate that you know only proper purposes were being you know thought about and referenced? We’d we’d also be like I said, we have coercive hearing powers, so it would be we would also be calling witnesses and getting their evidence about why did they do what they did, and then we’d have to do an assessment of that, applying the applicable, you know, the Brigandshaw standard. You’re a lawyer. You know all that stuff. So it would, yeah, it would be a it would be a fact a fact based investigation, in which we’d have to weigh up all the evidence and and make a determination about whether we thought someone was acting predominantly for a proper purpose or an improper purpose.
