Mark Dreyfus has refused to reveal when federal Labor added the high bar for public hearings to its anti-corruption bill, saying to do so “would be detrimental to the public interest”.
The move has prompted former independent senator Rex Patrick to accuse the attorney general of “using public interest immunity improperly”.
In confidential correspondence to the national anti-corruption commission legislation committee, seen by Guardian Australia, Dreyfus refused to say at what point in the bill’s drafting the controversial “exceptional circumstances” test for public hearings was added.
The attorney general claimed public interest immunity over the information sought by MP Helen Haines and Greens senator David Shoebridge, saying in the letter that sharing it would disclose deliberations of cabinet.
Anthony Whealy, the chair of the Centre for Public Integrity, told Guardian Australia gagging debate “really only reinforces the high likelihood” the test was added to secure support from the opposition.
Transparency bodies, crossbench MPs and senators have called for the “exceptional circumstances” bar to be dropped. They warn it will make public hearings extremely rare and appears to have been added to address Coalition concerns about Nacc hearings becoming “show trials”.
Labor’s design principles for the national anti-corruption commission, released before the election, promised that the commission would have the discretion to hold public hearings where it determines it is in the public interest to do so.
But the bill, released in September, added the exceptional circumstances test, winning praise from Peter Dutton who said the government had got the balance right. Both Dutton and Dreyfus have not ruled out that the high bar for public hearings was added in response to negotiations with the government to pass the bill.
At an inquiry hearing on Tuesday, the attorney general’s department deputy secretary, Sarah Chidgey, denied the government had “deviated” from that principle by adding the requirement of “exceptional circumstances”.
Haines asked: “At what point in the drafting was the exceptional circumstances test added to the test for public hearings?”. Chidgey took the question on notice.
She later told Shoebridge that Dreyfus “had asked us about adding that as part of the threshold”, but took on notice why the department had been asked to add it.
In the letter Dreyfus wrote that responding to these questions “would, or might reasonably be expected to, disclose the deliberations of cabinet”.
It warned that ministers’ confidence in cabinet would be “diminished” if deliberations were revealed, undermining the process of decision-making.
“Ultimately, this would be detrimental to the public interest.”
Patrick told Guardian Australia “it’s clear that the date on which something changed is a factual element that can’t go to the deliberations of cabinet”.
“The fact there has been a change is already public – it sounds to me as if the attorney general is using public interest immunity improperly due to political sensitivities.”
Whealy said it “is generally thought the exceptional circumstances test was added as a political decision” after negotiations with the opposition.
“The suggestion we’re not entitled to know … really only reinforces the high likelihood this is the case.”
“It’s a shame we can’t have an honest and genuine discussion on this important point.”
Whealy called on the government to admit it had “backtracked on a commitment” to allow public hearings to secure bipartisan support for the bill, suggesting this was in one sense a “good reason” but had taken Labor’s model closer to Scott Morrison’s.
Dreyfus declined to comment.
