Senate Legal and Constitutional Affairs Legislation Committee, , 7:10:47 to 8:13:05
The National Anti-Corruption Commission addresses referrals regarding community grants and explains the management of internal conflicts of interest for senior officials.
Topics: Integrity, Grants administration, Public service staffing
Speakers: Senator David Shoebridge, Kylie Kilgour, Philip Reed, Elizabeth Tydd, Gail Furness, Penny Shakespeare, Senator Jana Stewart, Senator Steph Hodgins-May
Uh we'll now resume from our afternoon tea break with officers of the Australian Information Commissioner. Miss Tid, would you like to make an opening statement?
>> Thank you, Chair. I appreciate the opportunity to provide a brief opening statement to the committee on behalf of my highly valued colleagues, the Freedom of Information Commissioner, Alice Lker and the Privacy Commissioner Carly Kind. Our engagement with the community has surged in 202526. This escalation is underpinned by growing concerns to preserve and assert privacy and information access rights in an increasingly complex and dynamic digital environment. Complaints about social media have more than doubled over the last two years. At this time of immediate and irreversible transformation, our authority is actively and increasingly urgently sought by the community, industry, and government. We're called upon to advise and adjudicate novel and complex legal and technical issues that impact privacy and information access rights across all demographic segments and economic sectors. Like other national regulators, we derive practical and profound regulatory insights because of the cohesion we apply to regulating both of these important rights. Our 2026-29 strategic plan confirms our commitment to our crucial mandate by highlighting the key strategic impacts we strive to achieve through applying a proactive, proportionate, purpose-driven and people focused approach. We aim to address power and information asymmetries, promote information integrity, embed fairness, accountability, and transparency in new technology. Responsive to the increase in community lodgements, we implemented a targeted program of case management improvements to ensure that we can deliver timely resolutions. Some key highlights for 202526 include privacy complaints increased by 60% to 5,268 that year compared to the same period in 202425. Despite this increase, 7% more complaints were finalized than in the previous year. 83% of privacy complaints were closed within 12 months, an increase from 76% in the previous year. The average time to resolve a privacy complaint is now 6 months, a reduction from 7.6 months in the prior year. Applications for review by the information commissioner increased by 42% to 3005 compared with the previous year. 6% fewer IC reviews were finalized than in 2425. Although we exceeded our KPI and finalized 83% of IC reviews within 12 months, that's an increase on what was 67% in 2425. The average time taken to finalize an IC review reduced to 7 months, down from 13.5 months in the previous year. The number of FOI complaints received increased by 35% and our closure rate increased by 19%. We also engaged our broader regulatory tools to achieve impactful outcomes during the year. For example, our FOI webinars have reached over a thousand practitioners for each webinar. Our compliance activities were targeted to risk and maximizing impact. For example, we delivered a report regarding government agency's use of automated decision-making and ongoing compliance obligations with the FOI act. This work complements the forthcoming obligations under the Privacy Act. We conducted our first privacy compliance sweep across a range of high-risisk businesses that collect personal information. Our enforce enforcement actions continued, including our thematic investigation into four agencies compliance with timeliness requirements under the FOI act. We secured the first ever civil penalty under the privacy act requiring Australian clinical laboratories with 5.8 million in penalties. We've consulted extensively to ensure the successful operationalization of the new requirements relevant to the privacy act. We proactively engaged with key stakeholders developing guidance and dedicated resources including for industry, parents and carers and for children and young people to support social media minimum age reforms. We worked closely with industry and stakeholders to provide practical guidance to support new privacy requirements under the anti-money laundering counterterrorism financing reforms that commenced in July 2026 and bought more than 120,000 new entities within the jurisdiction of the privacy act. We consulted extensively with parents, children, and industry to support the development of the children's online privacy code to be registered in on the 10th of December 2026. Our endeavors are directed to achieving conduct by industry that reflects the best interests of the child and support industry to adopt best practice approach to handling children's personal information. We're striving to ensure that AI is supported by information integrity and trust by developing a statement of rights preservations in government's use of AI for agency heads and also to provide practical guidance to the APS. The OIC is at the epicenter of digital transformation with our jurisdiction and approach assuring the preservation of rights that are highly valued by the Australian community. The three commissioner model and our commit committed staff are the lynch pins to achievement of these positive outcomes notwithstanding the increasing increase in demand and complexity. As an independent commission, it is our honor and privilege to strive to accomplish our mandate.
>> Thank you. Uh I'm looking around for questions. Actually doesn't look like there's any senators have questions here for you. Uh so thank you very much for that opening statement. Uh and it means that we are now in a position to dismiss you. Thank you so much for hanging around uh while the committee ran a bit behind today. Really appreciate it. Uh thank you very much. We will now suspend very briefly while we welcome our next Thank you very much. We will now resume. Uh and I call officers from the National Anti-Corruption Commission. Mr. Reid, would you like to make an opening statement?
>> Uh no, I would not, but uh I think the commissioner
>> Thank you very much.
>> Thank you, chair. Um, I acknowledge the traditional owners of the lands on which this hearing is being conducted today. And I pay my respects to elders past and present and any first nations people here today. As I stated in another Senate inquiry last week, the commission was deeply appalled by the attack on Dr. Helen Haines last week. As some of you have already noted this morning, she was instrumental in the establishment of this commission and she's currently the deputy chair of the PJC Knack. The commission continues to keep her and her support network front of mind at this sad time. We trust she will receive all the care and treatment she needs to make a strong recovery. Turning now to a brief update on the commission's performance. Our 2025 annual report was tabled on the 23rd of October. The report details the commission's significant effort in 202526 to addressing a backlog of cases from the previous two years and the impact that had on achieving the key performance indicator for referrals. We finalized 2,603 referrals, up almost a third on the 1,994 finalized the year before. And for the first time, we closed more referrals than we had received. Of the 715 referrals we carried over into 2526, we finalized 618 of those while also closing almost 2,000 of the 24,428 referrals that arrived during 2526. So across three years, 7,878 referrals have been received and 93% of those have been dealt with. Close to 90% of these referrals were finalized at what we call the triage stage. And the major reasons for this are they are not about Commonwealth public officials or if they are the matters being referred are not corrupt conduct as defined in the Knack Act. As of last Friday, the commission had 498 referrals awaiting assessment. We acknowledge that of these 228 have been o with us for over the 90 days we aim but are not required to finalize assessments within and that's mainly because we're receiving or waiting on additional information from referers and others before we can finalize those assessments. Our investigators have also been busy. So in our first three years of operation we commenceed 56 corruption investigations and 23 of these were finalized by the 30th of June 2026. Of these three established serious or systemic corrupt conduct and investigations reports were published. The other 20 were discontinued at a point when we determined we could not substantiate serious or systemic corrupt conduct. Of the 22 corruption investigations we inherited from the Australian Commission on Law Enforcement Integrity, three remain ongoing. One where we're undertaking the final steps in preparing an investigation report and two matters are before the courts. Overall, we've slightly exceeded the KPI for investigations being finalized within two years. We currently have 11 preliminary investigations and 30 corruption investigations underway and we're overseeing 31 investigations we've referred to other under other agencies to undertake. In 2025, we significantly exceeded the KPI for our corruption prevention and education function. We delivered 130 corruption prevention sessions to a range of Commonwealth agencies and other stakeholders as well as publishing a range of corruption prevention guides and resources all of which are also available on our website. A significant highlight of our prevention and education activity was planning to host the 10th Australian public sector anti-corruption conference that took place in September here in Canberra. This is an event that's been held by annually since 2007 and is hosted by a different anti-corruption commission each time and this year it was ours. APSAC 2026 was attended by more than 650 delegates from across Australia and the Pacific who heard from 65 integrity experts including Dr. Helen Haines and I thank the attorney general for opening that conference. Finally, last Monday the government announced it intends to recommend to the governor general the appointments of the honorable deputy chief justice Robert Mlelen AO as the national anti-corruption commissioner and Mr. Christopher Sabundra as one of the three deputy commissioners. We're very much looking forward to them joining us on the 11th of January 2027. Thank you.
>> Thank you very much Miss Gilgore. Senator Hodgins-May.
>> Thank you chair. Um you told uh uh Miss Kilgore, you told um senators last week that aspects of the community development grants program piqu your interest. Has the knack received any referrals about that program. Uh how many and what is their status? Uh I'm a
bit limited in what I can say about receipt of referrals. We have received some referrals. Um a lot of them are about telling us about the center for public integrity commission. the public integrity center for public integrity report. Um and beyond that I can't really say much more than we are looking at those and we're when we're in a position to decide on those we will make decisions.
>> Okay. Thank you. Um you said you would defer to a possible ANAO investigation under what provision um of the Knack Act does the commission defer a corruption issue to an auditor to that has no power to make corruption findings? It's not so
much that we defer. It's more about um until I get to a point where I can be satisfied that I've got an actual corruption issue that's before the commission either through a referral or through own motion. Um we are waiting really to see like the results of what's coming out of your Senate inquiry process, the referrals that we've received and any other information that comes before us. And at that point in time, we may well um if the ANO, for example, if they if they make a decision that they're not going to audit this program and we do get a viable referral about corrupt conduct, it may be that we do get into jurisdiction. But what I was explaining last week was that at this point in time, we're not in jurisdiction. And the ANO submission was saying that they were considering making a um undertaking an audit. And I was kind of waiting to hear whether they've made a decision one way or the other about that. So, it's not so much a deferral so much as we we're not there
>> Okay. And um look, I I know that I was also on that committee last week, but um officials confirmed that Labour headquarters um guided a $560 million grant scheme. Um if party headquarters directing public money to electorates isn't within jurisdiction. I suppose I'm just trying to unpack further what is.
>> Yeah. Well, that's new information to me that that was reported in the media. um that information hasn't I hadn't heard that until I think the media reports came out with um I think it was Minister King giving some clarifying comments about how the process ran. Um so that's new information that I'm still um like just received through media reporting and sorry what was the second part of your question?
>> Um I'm just like if if that doesn't fall within the next jurisdiction I suppose what does the
>> Well, I'd have to I'd have to have a >> I just have I just need to look at the further details about what exactly that information is that's come forward.
>> Yes. Okay. And you're also examining that um the potential unconstitutionality ahead of the
adjustments. I think that was the other thing I mentioned was that that was new information to us as well that um there's this there seems to be this version of the guidelines that came out that didn't um use section 96 of the constitution and then a further version came out and so that again that was new information that came out last week but I think the thing I've been conscious of is you are conducting a senate inquiry and I don't want to run rough shed roughshod over your process
>> so yeah so so just trying to understand so so what will be the next steps that you will take um with that information in that you've received over.
>> So um we well we've we listened to all the evidence um and for the bits where I wasn't in the room I've now caught up on all of that evidence. We've read all the submissions. I think you indicated that you are going to bring the ANAO >> in and I think there was an indication that there might be some further hearings on the 12th of November. So, I'd be waiting really to hear those and then I'd be starting to think about, well, what is the appropriate action for the commission to be taking in this matter?
>> Yeah. Okay. And
>> but I'd probably want to be engaging with your inquiry a bit further as well because you might have other information that you haven't been talking about in your hearings that you might also want to refer to.
>> Perhaps the minister will take us up on an invitation. We'll see. But um look, the Knack has previously declined to investigate the Morrison era grant um grant reports. Has the commission um ever opened an in opened a corruption investigation into a grants program?
>> I can't talk about ongoing investigation
>> previously though. Sorry. Historically, have have has the knack ever opened an investigation into a grants program? So,
um, if you if you're talking about the particular referral that was declined, so no, we didn't start an investigation into that particular referral for the reasons that the former commissioner gave to that referral, which I understand there's been some media reporting about. Um, it is difficult for me to comment about whether or not we have ever opened an investigation into a Commonwealth grants program without talking about ongoing investigations.
>> Okay. But okay, there's so there's potentially open investigations, but there's not been a finding,
>> but I'm not in a position to talk publicly about them. Yeah.
>> Um, you said the Knack isn't in jurisdiction. Um, you said the Knack isn't in jurisdiction yet. Um, jurisdiction under the Knack Act turns on whether there's a corruption issue and um doesn't have anything to do with whether the ANO ANAO decides to audit.
>> No, I've said that.
>> No. Okay. Um, why would an AON ano decision change whether you have jurisdiction or you're not? Is that what you're suggesting?
>> Because if the ANAO are going to do so, you're doing your Senate inquiry. So, I' I've been pausing to list let that process take place. If the ANAO then says it's going to do an audit, usually what would happen is the Knack would consider um whether it's appropriate for us to start an investigation as well. So because we've got a very complex ecosystem in the integrity space, we need to also be mindful about our obligations under the PGPA act about efficient effective use of Commonworth public resources. And if you've got another integrity agency conducting a process, it's not necessarily appropriate for us to come in. So we if that makes does that make sense?
>> But but you can start an investigation on your own initiative. Um
>> we could if we if we get information that gets us to that threshold. It might be that we'd be having a conversation with the ANAO to say we we need to investigate like it might be a very specific issue for example as opposed to the entire program. I think one of the other things I said to the committee last week was our our jurisdiction is investigating individuals, >> not the entire program, if that makes sense. Although it may be that every single thing in that program is a problem. But at the minute, what I've been what I've been hearing is it's more about there's a regulatory framework that allows for election commitments to be made and for them to be managed in accordance with particular procedures under the Commonwealth grant rules.
So, so, so for this particular case that we're discussing, um, yeah, you don't need to, you don't need an ANAOO decision. You can, you can start an investigation of your own valition
>> if I get to the requisite.
>> If you get to the requisite standard, okay. And >> and we don't really have much more guidance on what that standard sort of prescriptive guidance.
>> Well, it would need to be it would need to raise a corruption issue as defined under section 8 of the Knack Act. So that would be that either there's been um that there's evidence that suggests and again when we start corruption investigations it's always an open question about whether or not something's happened whether or not there's been a um adverse impact on a public official's performance of their duties functions or powers. Whether there's been a breach of public trust, whether there's been an abuse of office or whether there's been a misuse of official information. So that's that's >> corrupt conduct. And then we also have to be satisfied it's serious or systemic for our investigative powers to be able to be used.
>> But that could happen without the Senate inquiry finishing. Theoretically, it doesn't it doesn't depend on the Senate
>> No, it doesn't depend on that. But I have been mindful about not so for example, if I start a corruption investigation, I would usually go to another agency and say, I need you to stop what you're doing right now. And I for me my the decision that I've taken at the moment is to let the Senate inquiry do its work. Listen to that carefully. >> Um
>> I suppose I'm just thinking about the situation and you know we almost didn't get that Senate inquiry up and what happened if that Senate inquiry didn't come get up would
>> yeah then the information may have come to us through a different mechanism and we might be doing it through you know an assessment of a referral that had been received by us and making a decision based on that referral. Are you able to
share with me how many referrals have you've received about the community?
>> Can I take that on notice because I haven't got that number in front of me?
>> Yeah. And also the first one you received when the first one you received was um supplied. Um and if the ANAO does decide to order, will the Knack stand back entirely until that audit's done, which could take a year or more, or could you intervene or will you
intervene soon? I think we'd need to I'd need to have a conversation with the ANAO about what they how they would go about doing what they're going to do and whether there's particular information that we already think might be serious or systemic conduct that the Knack might say we need to take that part. So for example, the ANO sometimes will do like a sample of 50 out of all the grants made and that might be the focus of their their ANAO audit. There might be a particular case that comes to us through various mechanisms where it might be that that's the serious or systemic corrupt conduct corruption investigation angle and so then maybe we'd be taking that particular issue.
>> Okay. Thank you. Um do you want me to >> Yes, I I I can be done.
>> Thank you, Senator Hodgins. May Senator
She um Oh, thanks very much, Chair, and um thank you all for being here. Could I There was correspondence that I understand the Knack sent to the attorney general saying that there were no findings made proposed in the draft report from the Knack inspector. Are you aware of that correspondence?
>> I'm aware of that correspondence, but I'm going to turn to the CEO to answer because it was his correspondence.
>> That's right. And as you'll be aware, Senator Shoebridge, that was released under FOI recently.
>> Yeah. Sorry, I think I might might have misspoken. I said no findings. I think your correspondent said no recommendations. >> Um uh the what has been provided is a highly redacted copy um of the report of the draft report through the FOI. Um, were there any findings made? >> Were there any findings proposed?
>> Senator, um, I'd have to take that question on notice.
I mean, with all due respect, Mr. Reid, this would be an incredibly important matter in your work with the Knack. It's a matter of incredible importance in relation to the um the former commissioner. Um if there were proposed findings included in that, I would imagine that they would stick in your mind. So I'm going to ask you again the question. >> Were there any proposed findings in the
draft report? So the uh as you're aware the inspector has put out a statement um on the I think it was the 9th of uh July, no 8th of July um as to uh why she had discontinued the investigations and um as a result of that the reports have never been finalized and therefore as a result of that um I'm not in a position to discuss what was in that letter which related to the draft report without um further consideration about the matter and uh and in the first instance that would need to be in a discussion with or seeking um uh consultation with the attorney general. Is the minister responsible for um consideration of whether this correspondence would actually be in the public interest to disclose beyond what's already been made public?
>> Well, did you have that discussion before you wrote that there were no recommendations made?
>> Did you did you go through that process? You should be aware there's a um a requirement for me as the accountable authority under the PGPA act to identify and alert it's not quite the words but alert the um minister which in this case is the attorney general to any significant issues that are occurring within the Um, and sorry that's not the piece. Um, and as a result of that, on a needs basis, I write letters to the attorney um about significant issues. This happened to be a significant issue at the time because um I had received or the commission had received a draft report and as a result of that um having already advised the uh attorney about the existence of the investigation I then felt that it was important that I advise the attorney about the receipt of the drug report.
>> Well, um,
>> which is what I did.
>> Well, which is why I I I note that you said there were no proposed recommendations, but it was an important matter,
Well, any um investigation as you're aware, you know, having previously gone through the process of an investigation by the inspector into the decision of the um commission not to investigate the robo debt referrals. Um the outcome of that was a report and you're fully aware of that um that was um publicly released on the 30th of October 2024 and that um led to significant um issues and um for the commission including having to change our the way that conflicts of interest were managed, how um the knack seemed new assessment panel operated. And so, of course, um, anything of substance coming from the inspector is going to be a significant issue that warrants me alerting the attorney but that doesn't mean that um, at this point in time I'm going to do anything but take this question on notice. um the release of the unredacted letter.
>> But but I'm not Yes, by all means consider me asking you to provide to this committee the unredacted letter. Um consider me also asking you to provide to this committee the unredacted um draft report as two separate requests and I assume you're taking both of those on notice, Mr. >> But I was asking you a far simpler You've released
Senator
>> BS if you just let me finish Mr. um my question was you released details that said there were no proposed recommendations in the draft um report. I've asked you whether there were any um proposed findings and um that is the question I'm asking you address not the one that you have re reframed it as I ask you to address
that. So the redacted letter the redactions were made under section 47E and small D and 47F subsection 1 which relates to operations of the agency and personal privacy. So that was the basis of the redactions and at this um I'm not going to talk about those redactions but I'll take that on notice to consider.
>> Um I want to be clear that at this stage I'm not asking you to detail the findings. I'm asking whether or not there were proposed findings.
>> But I think that's the same thing. And at this point I'm not.
>> But you've been able to tell the public there were no proposed recommendations. If there were no proposed findings, tell us that. If there were proposed findings, tell us that. I'm not asking
>> I think I've answered the question. I'm taking it on notice.
could I ask you about um on the 8th of July, acting deputy commissioner Shakespeare's conflict declaration covered some health department matters. And then two days later is my understanding acting deputy Shakespeare was recused from all such matters involving the health department. Can we get some clarity about what led to this? Was there any um were there any matters before the acting deputy commissioner? Can we just take us through what happened here?
>> Um so deputy um and well deputy commissioner Shakespeare's here. Acting deputy commissioner Shakespeare's here. Um they weren't matters where she was the decision maker. Um as when both the acting deputy commissioners were appointed on our first day that they were with me, we went through all of the ongoing investigations that are underway and we conflicted both Jamie so both um Deputy Commissioner Shakespeare and Deputy Commissioner Low out on matters where it was obvious they had a a perceived or real conflict of interest. I think the particular media reporting that you're referring to was about uh material that we released under FOI where it was a um assessment panel decision-m process. I was the decision maker at that. So um Deputy Commissioner Shakespeare was not the decision maker but because it's a deliberative process where a group of us meet and assess like talk about assessments in that particular moment that particular declaration that she made was that she knew of somebody but never had worked closely with them and the ruling on that particular moment in that particular moment was that I didn't consider there was a perceived or actual conflict of interest because it wasn't a close working relationship. Subsequently after as Deputy Commissioner Low and Deputy Commissioner Shakespeare and Deputy Commissioner Gauntlet I think had a conversation about how it might just be better to out of an abundance of caution whether or not in individuals have real or perceived conflicts of interest a bit like what we've done with the commissioner's recusals around all defense matters that for that for deputy commissioner Shakespeare she was recusing or she wouldn't be involved in decision-making on any matters involving that department because of her previous or her current role as a deputy
secretary. Sorry. Um, Deputy Commissioner Shakespeare, thank you for your attendance today. Um, um, and I don't mean to address criticism in relation to you. You take advice from the organization you're in. Um, and, um, and you declared your conflict of in you declared the potential conflict of interest in the course of that. Is that right? >> It's a bit unfair. You don't have a microphone. Maybe um maybe Mr.
Penny Shakespeare acting deputy
>> so we can give you could switch maybe you can switch chairs for a sec to make >> or you could become you can be you can
>> thank you senator could you please repeat the question
>> um you as I understand it you might have to pull that mic around too you as I understand it in the course of that assessment panel meeting you declared the nature of your interest. You did what was was right in identifying the the connection and the previous connection in the course of that meeting. Is is that what you did? >> And um was and and then I did Miss Kilgore who was I assume chairing the the meeting. Is that how it happened? Y >> um made a determination on the conflict of interest. Is that what happened? >> That's correct. and you continued to participate in the the process.
>> I remained at the meeting. Um other other items I left the meeting. So it if as as Miss Kilgar said was not a decision maker.
>> All right. But was they just an Thank you Miss Miss Shakespeare. But was a decision made in that meeting, Miss Gilgore. Um acting commissioner.
>> I would have to go back to the records and check. So I haven't got that referral in front of me. Um, and so can I take that on notice and and give you an answer about whether we because we don't always make decisions right in that moment. Sometimes we'll send things back for further information or we defer decisions to get additional material.
>> Mr. Reed, were you present in that meeting? Are you normally present in those meetings?
>> Um, what was the
>> was the 8th of September? >> September. >> Oh, sorry. The 8th of July.
>> Yeah, I would have been present at the
and did you provide any advice about how to address a conflict of interest matter um, when it arose in the circumstances we've just heard, Mr. Reed? Given the history of conflicts of interest,
>> you'll be aware of the protocol that I put in in place which has also been released publicly um, on the uh, 18th of June >> uh, which commenced on the 7th of July about declarations of interest by all the stats holders. So we had that process >> already underway. >> Um and that ultimately led to each of the statutory office holders writing to the attorney general about their um declarations of interest. But of course we were operating under already the terms of the um NSAP as we call it um terms of reference which had been changed after the inspector's report of 30th of October 2024. So they were changed in November which made it quite clear how conflicts of interest or potential conflicts of interest should be handled and that still is in place and that is exactly how things operated on that day. Well
well you see Mr. Reed this is the difficulty isn't it? You had just the previous day just the previous day on the 7th of July the new process had come into effect in terms of declarations and the like that come into effect just the previous day and then the next day you're sitting in a meeting chaired by the acting commissioner one of your acting deputy commissioners raises a valid point in relation to prior knowledge of a matter of a person who and I don't don't need to know the um the full detail, but a person who was in some way involved in a referral that had happened to you and and did you say and and as the acting commissioner then make made a ruling that the acting deputy commissioner could continue notwithstanding, >> did you say anything? Did you say, "Well, hang on a sec. >> We've had this experience with um former commissioner Breitton. conflicts of interest have caused this organization so many problems. Did you say anything
>> Senator? I've already explained that the national the National Anti-Corruption Commission Senior Assessment Panel terms of reference which everybody in that meeting were aware of that were changed in November of 2024, have been released publicly on multiple occasions are in place and we are operating under those terms of reference. >> Yeah. But there is no issue. There's no difference here between the document that commenced on the 7th of July which happened to be the day after >> no the day after the commencement of the acting commissioner arrangement. The day after the commencement of the two acting deputy commissioners. They had had discussions um with a number of people but including um uh the acting commissioner about how we um managed conflicts in the context of the NSAP and nobody um has challenged that since that has been put in place in terms of um the fact that we are following a process which is different to what was in place prior to that date, prior to November 2024, and which um has in my mind largely overcome the problems that were identified leading into that um in initial investigation by the inspector of the Rover.
>> Now, Mr. Reed, my question was very when acting deputy commissioner Shakespeare made her declaration and prior to acting commissioner Kilgore making the ruling that notwithstanding the declaration she could remain in the assessment panel. >> Did you say anything? Did you say for example, oh hang on, these new rules have come into place yesterday. Well, hang on. We've got into trouble in situations like this with Commissioner Beritton before. Well, hang on. I think the appropriate thing in this situation is for acting deputy commissioner Shakespeare to step outside. Did you do
>> It wasn't my place to do that. I was not chairing the meeting. Assistant Commissioner H sorry acting commissioner Kilgal was chairing the meeting. We were following the terms of reference of the meeting. The appropriate action was taken in the meeting. And what I was referring to here in the instruction that I issued is in terms of declarations of interest. Oh sorry declarations of interest under rule 16 of the PGPA act which is where previously um there has been criticism of the commission in terms of what's been declared to the attorney and what process we went through in relation to that. the two things there is an interreationship but they're not contingent on each other if that makes sense.
>> Well um your C your your CEO Mr. Reid said the appropriate action was taken in the course of that meeting acting commissioner >> Kilgore >> and yet as I understood the evidence earlier following discussions amongst deputy commissioners that followed that decision a different decision was then made two days later. Can you talk me through what happened?
>> So there's the distinguishment between that particular case and the decision that we made at NSAP and then a subsequent conversation about rather than me every single time Penny says I know this person because I worked with them in the department. I was going to make a ruling on each individual case because the facts do matter about whether a conflict of interest arises or not. a dec a proposal was put to me that for all department of health matters that Penny would just not participate in those matters. Similar to we've got um Dr. Gauntlett has a similar arrangement because he's a participant in the NDIS so he doesn't have anything to do with NDIS matters. There's some arrangements around deputy commissioner low as well because of agencies that she's worked in before. We've just done a an abundance of caution. Whether or not a conflict in a particular matter arises or not, they're not being involved in those matters.
>> Kildo, did that changed the position you had adopted in relation to the decision you made on the 8th of July regarding that referral? Did did the decision you made 2 days later?
>> I can't recall in this moment what the decision was that I made on the 6th of on the 8th of July. So, I'd need to go back and check. My memory is no. the
acting deputy commissioner Shakespeare. My understanding of your evidence earlier was that um on the 8th of July, you declared your conflict, correct? Or your potential conflict or your perceived conflict, however you want to describe it, and that you did that
>> Would I would you like me to explain what happened from my perspective?
>> That would be terrific.
>> Uh yes. So uh we were at the point of the meeting where people were asked to declare any potential conflicts relating to the subject matter of the meeting. Uh I did that for this particular matter. The uh declaration was considered against uh you know the arrangements for managing conflicts of interest for that particular meeting. And the decision was in this uh matter that the um prior association with one of the people involved was uh not sufficient to raise uh an actual or perceived conflict of interest.
>> And this was in relation to a department of health matter was it?
>> Uh it was in relation to a matter that involved the health portfolio.
>> The health portfolio and then there were discussions with other deputy commission commissioners that that followed that.
there are quite a lot of people that work in the health portfolio um many of whom I do not know um it's but we decided that in uh dividing up of cases that would be considered by different deputy commissioners uh that uh health matters age care matters other things in that portfolio would go to other deputies to avoid any issues with conflict of interest and as Miss Kilgar has explained to make sure that we weren't having to make constant uh decisions and and you know having a lot of process around individual matters
>> and was any of that discussion in light of what had happened on the 8th of July?
Uh no, it was a subsequent discussion between deputy commissioners and we also discussed that with the acting commissioner uh about how we would uh be dividing up work.
given what happened with Commissioner Breitton and how it took such a long time for the Knack to to say, "Well, if one of our commissioners has had significant involvement in a department, in that case the defense department, that when the matter be involving the defense department comes before them, they have no part to play in it. It took months and months and months to get there with um Commissioner Barrett. Do you remember that?"
>> Yes. Yes.
>> How did you not apply that learning straight off with acting deputy commissioner Shakespeare who had >> and it's no criticism of acting deputy commissioner Shakespeare made the declaration set out the history. Why didn't you apply that straight off the bat?
>> Because I was applying the process under our NSAP terms of reference which is I meant to look at each case on a case-by case basis. We then they we then had further conversations about how best to manage this all of our conflicts and potential conflicts and the work between us all. And we agreed that a better process rather than us always doing it on case by case basis was we would just say for certain portfolios or agencies particular deputy commissioners would not be involved in those matters if they'd had you know either long working relationships in them and or they received services from those agencies.
>> Um my my final questions are about the question of public hearings. The parliamentary joint committee recommended in May that the commission public publish guidance on what counts as exceptional circumstances for a public hearing. Um, has that been brought to your attention?
>> I don't recall that as a recommendation, but if it is, I'll go back and find out why we haven't done it because I'm I don't have a problem with publishing such guidance. It would outline what the case law says and similar to what I said at the PJC Knack hearing on the 18th of September when Dr. Haines asked me a question about public hearings, exceptional circumstances and the public interest test.
>> All right.
>> I'm sorry if we've missed implementing
put into one side it may that parliamentary recommendations are responded to by ministers and departments normally. So, and normally you would be engaged in that and of a process to be engaged in that and you wouldn't be off your own bat. Responding would normally happen through the attorney general's department would be my understanding. So, I I don't want to put any um any misinterpretation of that about what your role is here. You'd normally feed into a process. Um um the um the question of public hearings is a matter of continuing public concerns. >> Yes. Um, so what what when will the new commissioner start?
>> He starts on the 11th of January, 2027.
>> And I can understand the difficulties you may find yourself in between now and January when a new commissioner starts to be making determinations on a matter which may be so important to the role of the new commissioner. >> Are you having any communications with
called him on the day of his appointment to congratulate on him on his appointment. Uh he is making arrangements to come and meet with some of the staff in November and to start some conversations about what he's thinking about um the role and for me to provide him with any information he needs before he starts. But obviously he can't make decisions until he's in
>> it goes without saying. And have you done the same in relation to the prop the the new the incoming deputy
commissioner? I've had conversations with Mr. Sabunda. Yes.
>> Um and is there a process where he can come and you can start doing some of that familiarity um with Mr. Sagunda as well as the proposal? >> Uh yes, we haven't put anything in place
yet because the obviously the commissioner is the probably the first off the rank in terms of meeting with but the offer is there to Mr. Sabunda and if there are issues that come up between now and January that I think he needs to be involved in we'll talk to
him. and acting commissioner Gilgore in no way let this be a restraint on you in having a public hearing between now and January. I wish you all strength to hold a public hearing between now and January and I'd urge you to do that for the
>> right matter I will do one.
>> All right. Thank you.
>> Thank you. Uh and thank you for bearing with us as we're running a little bit behind on time. That does conclude the questions that we have for you this afternoon. So thank you very much. >> Thank you for appearing before the committee. Uh we will now take a very brief suspension while we welcome our We will now resume. I now call on the officer from the office of the inspector of the National Anti-Corruption Commission. Inspector, would you like to make an opening statement?
>> Very shortly, if I may.
>> Absolutely. Proceed.
>> Dr. Haines is a valued deputy chair of the PJC on the National Anti-Corruption Commission and my thoughts are with her and those who surround her and I look forward to her recovery and return. Thank you.
>> Thank you very much for that brief statement. Proceed to questions and go to Senator Shoebridge.
>> Um yeah, I'd like to reflect that back. Her work on the um parliamentary joint committee has been essential. She's sometimes the government whisperer um and manages to get them to come across and do very sensible things um uh because she has that persuasive ability and and clear principle. Um I sometimes watch watch her in admiration as she um um gets things with um honey and gentleness um and firm principle behind it and I would love her as we all do. >> Um we need more Helen Haines in in in inspector, the um there's a 2024U um that requires, as I understand it, you to notify the commissioner before interviewing Knack staff. Can you explain the rationale behind thatou and um and how it has played out in practice?
Theou effectively mirrors theou I have in place with the ICIC in New South Wales. Uh as to the reason it became part of theou I inherited it as it were. So it's not an aspect that I thought about and determined to be appropriate. Uh it's never arisen in New South Wales and it's obviously never arisen uh in the Commonwealth. in practice, I would expect to have a conversation with the commissioner in the uh before I sought to do anything. So the question of approval is >> one that uh you're referring to, but I would be unlikely to do it as a matter of courtesy without speaking with the commissioner.
but there might be circumstances which we can't predict where it may be important. You may have had something come to you from a member of staff who may want to have their identity kept confidential. I could imagine that being a thing. And if yourou says, well, before you can interview them, you have to tell the commissioner, that could cause difficulties going forward, I would I would imagine.
>> Well, a memoou is, as it is said, a memorandum of understanding. It's not a statutory or legislative instrument which binds me. I have no doubt that if the circumstances were such that I was satisfied that it was in the public interest and consistent with my statutory obligations to speak with a member of staff without first speaking to the commissioner. I may not feel that a memorandum of understanding prevented me.
>> Yes. Um, I I appreciate anou is not legally binding, but breaching anou could cause difficulties in a relationship with an organization where there was one in place. I might just ask you, do you think this might be a matter that'll be be appropriate to review um um to ensure that there are no potential constraints or inappropriate obligations before you um before that becomes a
>> Certainly, I propose with the incoming uh commissioner to have theou reconsidered in any event. And certainly, Senator, I'll take that um that on board in that reconsideration.
um I think you were probably I think I saw you in in the room when I was asking questions of um Mr. Reid regarding the correspondence that he sent to the attorney general regarding your your draft report. Um one of the questions I was asking was in relation to the redacted correspondence that we've seen from Mr. read indicated that there were no recommendations proposed by you in the draft report. First of all, is is that accurate?
>> Well, I have not seen the letter uh in full. I have only seen the redacted letter and I certainly wasn't consulted before the letter was sent. The draft report uh did not contain a draft recommendation.
now there are there potentially multiple reasons why that may happen. One of which is that a draft report you may be waiting for clarification of factual matters. You may be waiting for clarifications of potential findings before you would proceed to a recommendation. That could be one reason.
>> Well that is one reason.
>> Well could you perhaps explain that? Um, inspector,
>> I had not completed my consideration of the submissions which were before me and for me to consider or formulate a draft recommendation, I would want to be satisfied as to my factual and legal decisions. Uh it's also the case that at that stage I was not aware of the knack in particular the CEO um making the direction that he subsequently did and if I had have been aware of that that would have been a reason not to make a recommendation. So I've answered your question in a somewhat different way from how it was framed.
>> Yeah. And I'm I'm sorry I'm just having difficulty comprehending that second part of your answer. Could you explain it in a different way that
the systemic issue which arose in relation to what I've described publicly as the first complaint investigation >> was that the secretary office holders did not know that the former commissioner was undertaking a role providing advice to the IGF. The fact that they did not know that was a problem which was systemic in nature. It meant that the system by which disclosures were made was inadequate. >> And so it was in my mind when I was drafting the report that a solution was needed to overcome that clear defect. >> Yes. And the knack determined that uh process itself and it did what it did or the CEO did what he did and to me that dealt with the systemic issue. Well,
>> all right. And and separate to that um is that at the stage that this draft report had had found itself, which is you were still waiting for representations and submissions into no doubt potentially important findings of fact. You wouldn't expect recommendations to be contained in a draft report at that point. You would wait until those factual matters had been resolved before you would turn your mind to recommendations. Is that
right? >> No. I could well have turned my mind to recommendations and I could well have made recommendations in the draft report. In this case, I hadn't been at that stage and therefore there were no draft findings. But for example, if we go back to draft, sorry, draft recommendations. If we go back to robo debt, certainly my draft report contained draft recommendations because I was satisfied at the stage of providing the report that there was a recommendation that I was uh comfortable should be made.
I I understand your situation at that point. you hadn't put that the state of your state of mind at that point wasn't that there were draft recommendations to be included but there was still more investigation to be done before you concluded whether or not you may include
>> more consideration to be done
>> um were there findings draft findings made in the um in the report
>> as so far as the content of the report uh what I have said publicly as to my reasons and what has been produced under FOI uh contains what I'm prepared to say publicly about that report. Had the commission in its letter uh not said anything about recommendations, I would not have said anything about recommendations because that is part of the deliberative process and um as you know uh parts of the deliberative process can be uh kept confidential.
>> Yeah. And to be clear, did Mr. Reed consult with you before he um drafted that correspondence and did he consult with you in before it was released in the reducted form?
>> The answer is no to each of those questions.
have you raised that matter with Mr. Reid since? Do do you think it would have been at a minimum useful if not also courteous um to have the conversation with you before he releases details about your draft report?
>> Well, had he I would have indicated that I thought that that was probably uh something that he should reconsider.
when I um I asked you questions about findings, of course findings could involve, you know, factual findings that might be critical, might involve factual findings that are positive. It might involve findings of office of misconduct or agency maladministration quite separate to recommendations. Um, you're probably going to give me the same answer that I you gave me earlier, but were any of those findings, draft findings included in your report?
>> For the reasons I've given earlier, uh, Senator, they're not matters that I propose to make public.
>> Thank you, Senator Shuich. That concludes the questions that we have for you this afternoon. Uh, thank you for bearing with us as we're running a bit behind. Appreciate answering the questions that the committee had for you this evening. >> You're now released. We will take a very short suspension while we welcome the