October 12, 2022
The Administrative Appeals Tribunal, which is stacked with political appointees, will sign off on warrants for anti-corruption investigators to tap the phones of prime ministers, other politicians and spy chiefs, sparking calls from the opposition for greater safeguards.
The legislation to establish the new national anti-corruption commission states that commissioners seeking to bug phones or access the encrypted messages of its targets must obtain a warrant from a judge or “nominated member of the Administrative Appeals Tribunal’’.
With 40 per cent of those appointed to the AAT in the past three years having political links, there are concerns the process could be politically tainted.
The Albanese government said the process was identical to that which currently existed, where commonwealth integrity investigators obtained warrants from judges or AAT members.
“The legislation proposes that the national anti-corruption commission would follow the exact same process as is required for existing commonwealth law enforcement and integrity bodies with equivalent powers such as the AFP and ACLEI (the Australian Commission for Law Enforcement Integrity),’’ said a spokesman for Attorney-General Mark Dreyfus.
“This is the same process that was adopted by the former government for its abandoned integrity commission.”
The Coalition is calling for amendments, saying a Federal Court or Supreme Court judge should sign off on the warrants rather than a member of the AAT, given that the targets of corruption inquiries could include prime ministers, attorneys-general, spy chiefs or senior public servants.
The NACC legislation has been introduced to the House of Representatives and referred to a newly created parliamentary committee, which is due to report by November 10. The government is hopeful of a vote on the bill in the final sitting fortnight of the year but some within the Coalition say that timeline is too rushed.
Two former Liberal chairs of the powerful parliamentary joint committee on intelligence and security, James Paterson and Andrew Hastie, said the decision on whether to issue the warrant was too serious to be issued by a member of the AAT.
Along with Liberal MP Keith Wolahan, a barrister and former commando officer, they are calling for warrants to be signed off by a superior court judge.
“It is no small thing for a warrant to be issued to intercept the (encrypted) signal messages of a PM, minister or senior public servant. Hopefully it will be a rare event,’’ Senator Paterson said.
“As a member of PJCIS, Mark Dreyfus often argued the issuing authority for these powers should be a senior judge, not a member of the AAT. If he thought that standard was appropriate for terrorists, why hasn’t he approved that for public servants and politicians?”
Mr Hastie, the opposition defence spokesman, said: “Any move to surveil the communications of a member of parliament – from the backbench to Prime Minister – and the commonwealth public service must be authorised by a Federal Court judge. We can’t risk this regime (NACC) becoming a cartel with political appointees issuing warrants from the AAT.’’
Mr Wolahan, a member of the NACC parliamentary committee scrutinising the legislation, said the expansion of Australia’s surveillance infrastructure should not be made lightly.
“The bill requires better safeguards,” Mr Wolahan said. “This includes ensuring that the approval of a warrant for interception can only be authorised by a superior court judge.”
Leading anti-corruption expert Geoffrey Watson SC said the provision to use AAT members to sign off on warrants was “perfectly acceptable” and had been worked out over time in a number of sensitive areas.
“The meaning of an eligible judge is simply one who has this task amongst their many tasks,” said Mr Watson, a director of the Centre for Public Integrity.
“The kind of AAT members to which they refer would be presidential members who are often judges or otherwise very senior lawyers.
“These are highly qualified people who are given the power.”
Mr Watson said judges and AAT members approving specialised warrants would be subject to parliamentary scrutiny through the bipartisan NACC oversight committee.
Law Council of Australia president Tass Liveris, who is reviewing the bill, said the council favoured the use of “independent and expert issuing authorities, ideally superior court judges’’ to authorise warrants.
Mr Dreyfus will tell the National Press Club on Wednesday the government had “got this bill right” but he was willing to listen to other views to enact the best possible anti-corruption commission.
While blaming the Morrison government for an erosion of trust between voters and politicians, Mr Dreyfus will say: “In establishing the national anti-corruption commission, our aim is to create a lasting body – one that not only causes our government to be better, but all future governments to be better too. Integrity should be above partisan politics.”
The revelations come as new polling from the The Australia Institute, to be released on Wednesday, shows 67 per cent of Australians believe the NACC’s public hearing test should be weaker than the government’s proposal.
Mr Dreyfus, backed by Peter Dutton, says the default position should be to hold private hearings and only have public hearings in “exceptional circumstances” and where it’s in the public interest.
The Coalition will oppose any watering down of the test for public hearings, with Mr Wolahan saying it came down to fairness.
“It (the NACC) is not just about politicians; it is about the lives of public servants, federal police and members of the ADF,” Mr Wolahan said.
Mr Dreyfus is currently reviewing the AAT and has accused the former Coalition government of undermining the tribunal by “using it as a Liberal Party employment agency’’.
