Former appellate judges assist the cause for a national integrity commission … The evidence is mounting and the public support swelling … The Coalition will be dragged kicking and squealing to this policy prescription … Public hearings crucial … Details of the framework
Stephen Charles and David Harper from Victoria; Paul Stein, David Ipp and Anthony Whealy from New South Wales; and Margaret McMurdo from Queensland formed the institute’s National Integrity Committee to advise on the design of the commission.
Stephen Charles had been part of the design team for Victoria’s Independent Broad-Based Anti-Corruption Commission; David Ipp had considerable experience with NSW’s ICAC; while Anthony Whealy previously headed the Australian branch of Transparency International which publishes the corruption perception index.
They were all drawn into the orbit of The Australia Institute, the Canberra based, independent research and policy think-tank.
In February they formed a delegation to go and see recently installed Commonwealth attorney general Christian Porter, to press the case for a national ICAC.
Porter did not close the door, but said they should come back with a detailed plan for how the proposed commission would work. In January, he dismissed Opposition leader Bill Shorten’s support for a national ICAC saying it was a “headline grabbing exercise”.
The Coalition was on the back foot, with Labor stealing the limelight on a policy that had widespread community support.
Joyce was concerned that a national watchdog could be “weaponised” to such an extent that a minister would be “terrified to make a decision that’s different from his department”.
Minister Christopher Pyne accused Shorten of “breathtaking hypocrisy” in advocating an integrity commission.
The Greens have long agitated for a national anti-corruption body, and now other cross-benchers, such as Derryn Hinch and the remnants of the Xenophon party, are onboard as well.
The ALP’s framework is for a standing royal commission with a commissioner appointed by parliament supported by two deputies; public hearings where appropriate; and with jurisdiction over members of parliament, their staff, the governor general, the federal judiciary, public servants, statutory officers and businesses and organisations that transact with the Commonwealth.
Shorten’s estimate is that it would cost the revenue about $58.7 million in the forward estimates.
The detailed model put forward by The Australia Institute and the former judges is quite close to that advanced by Labor, the one dismissed by Porter as “headline grabbing”.
Porter said:
“The critical questions are in the detail about how its jurisdiction would operate. Who has the discretion to be exercised as to whether or not you have a private or a public hearing? Who oversights the body itself.”
The Australia Institute has now attempted to address those issues, with analysis of each of the state corruption bodies, their powers and effectiveness.
There are four components – dealing with jurisdiction, outcomes and objectives, public hearings and the appointment of commissioners.
The Australia Institute framework calls for a broad based commission, but not in the sense of Victoria’s Independent Broad Based Anti-Corruption Commission, which can only investigate conduct that would ground a conviction for an indictable offence.
Consequently, there was no investigation into the Victorian Opposition leader Matthew Guy’s alleged association with mafia figures or the secret tapes that led to the downfall of premier Ted Baillieu.
The jurisdiction of the national body should cover the conduct of any person that could affect the impartial or honest exercise of public administration.
The broader the jurisdiction the more likely anti-corruption bodies are to undertake investigations. Clearly NSW’s and Queensland anti-corruption bodies, which enjoy the widest powers, have led the field in investigations.
The integrity committee of ex-judges recommends that fraudulent conduct, even where there has been no actual wrongdoing by a public official, should still be treated as corrupt conduct where confidence in public administration is impaired.
This was also a recommendation of the 2015 Murray Gleeson led inquiry into NSW’s ICAC.
As for investigating misconduct by the federal judiciary this “requires a detailed research project by constitutional experts”.
To promote the cause of administrative and political integrity a National Integrity Commission should investigate and expose to the public misconduct in Commonwealth administration.
Not all investigations will expose criminal offences, but those that do should be referred to the DPP.
“For example, soliciting political donations is not illegal, but in the context of an application for a mining licence or development approval, the relationship and conduct between the decision maker and the applicant may warrant investigation by an integrity commission.”
In its framework recommendations TAI adds, “prosecution is not the main aim of investigations, or the primary purpose or measure of a commission”. Acquittals can still take place where corrupt conduct occurs.
For example, in Western Australia former premier Brian Burke was acquitted on some charges, even though corrupt conduct had occurred. The former premier worked as a lobbyist for a business seeking development approval for a development at Smiths Beach, Yallingup.
Burke corruptly encouraged the development company to financially support candidates in the local council election that were supportive of the development.
The financial support was hidden through a front organisation, thereby breaching state electoral laws.
A National Integrity Commission should have the ability to hold public hearings if the commissioner considers it would make the investigation more effective and be in the public interest.
The Australia Institute submission says that public hearings help in the exposure of corruption, increase public trust, make investigations more effective, educate the public, act as a deterrent, and make commissions accountable to the public.
NSW tops the chart for both public inquiries and reports made public, followed by Western Australia:
The 2012 and 2013 public inquiries held by NSW’s ICAC into the issuing of mining leases and licences resulted in the prosecution of two government ministers, Eddie Obeid and Ian Macdonald. Public hearings were critical to uncovering information needed to finalise the investigations.
Commissioner David Ipp said that without public hearings, “Operations Jasper and Acacia could not have been undertaken”.
The Queensland CCC reported that public hearings were critical to its 2017 investigation into allegations of non-compliance with local government electoral laws and disclosure of political donations.
Public hearings also played a significant role in Victoria’s Operation Ord involving corruption in the Education Department, resulting in a spike of fresh allegations made to IBAC about corrupt or improper conduct.
In Victoria v Australian Building Construction Employees and Builders Labourers Federation, (1982) 152 CLR 25 at 97, Chief Justice Anthony Mason said that an order for a royal commission to proceed in private, “… seriously undermines the value of the inquiry … An atmosphere of secrecy readily breeds the suspicion that the inquiry is unfair or oppressive …”
There are other remarks in support of the value of public inquiries from Tony Fitzgerald and the Victorian IBAC commissioner Stephen O’Bryan QC. The 2015 report of the inquiry into NSW’s ICAC by Murray Gleeson found that:
“Public inquiries, properly controlled, serve an important role in the disclosure of corrupt conduct.”
Polling conducted by TAI shows that 78 percent of Australians want a federal corruption commission to be able to hold public hearings.
Appointment of integrity commissioners
A national commission should be established with an independent commissioner appointed by a politically bipartisan joint parliamentary committee.
There were no conclusive recommendation for an oversight committee.
None of these agencies has the power of a standing anti-corruption commission or the specific jurisdictional focus on corruption, including the purchase of political favours by outside interests.
In nearly four years as Justice Minister, Michael Keenan did not request the commission to hold a public hearing to investigate corruption. Fairfax investigative reporters Nick McKenzie and Richard Baker said this guaranteed that the agency had “virtually a non-existent public profile”.
Further, the AFP is now part of the department it is supposed to be investigating.
In the 2017 Australian Public Service employment census, five percent, or almost 5,000 respondents, said they had witnessed corrupt behaviour.
A majority of respondents in 59 agencies reported to the APS census that they believed they worked in a “high corruption-risk environment”.
Four years ago, 2.6 percent of Commonwealth public servants said that they had witnessed corruption. The definitions of corruption have changed but in 2016-2017, 89 percent of the investigations into allegations found that the APS code of conduct had been breached.
Nonetheless, conservative columnist Gerard Henderson boldly asserted:
“So far no one has made a convincing case of why Australia needs an ICAC-like body at the national level.”
Chris Merritt, one of the pundits at The Australian, rails against ICAC and in particular against public hearings on the ground of reputational damage to people caught up in an investigation who have not been convicted of an offence.
He championed the Obeids unsuccessful civil action against Ipp, various ICAC investigators and the State of NSW.
The distinction between a finding of corruption, a criminal conviction and different standards of proof seems to have escaped him.
Quite apart from that, reputational damage largely can be managed by the commissioner in charge of a public investigation.
Even though warriors on the right are battling against the tide, the momentum for a national integrity commission would be very difficult to reverse.
Increasingly, the government looks like a shag on a rock for failing to take the initiative on a policy prescription, which according to polling in November 2017 shows that 89 percent of respondents either support or strongly support a national independent commission against corruption.
This is a number that has steadily been growing. According to polling from Reachtel and Research Now there was 65 percent support in March 2016 and 80 percent support in May 2017.
The Coalition had to be dragged kicking and squealing into accepting marriage equality, even though voters overwhelmingly were in favour.
It reinforced the image of a government that was regressive and out-of touch with the electorate. Delaying the inevitable with a national anti-corruption body repeats the same folly.