Commonwealth watchdog Corruption cannot be rooted out by bodies that are too prone to abuses themselves. An effective integrity commission will need to function out of the public eye.
Corruption is one of those galvanising terms. Everyone loathes it and wants to ensure it does not take root in the institutions of government. It prompts our sense of right and wrong.
It’s precisely that instinct for justice – and our (occasionally earned) distrust of politicians – that has led to the emotionally charged public debate over the establishment of a Commonwealth Integrity Commission, often referred to as a federal independent commission against corruption (ICAC).
There is some irony that at a time when there are 10 Commonwealth agencies with responsibility for stopping corruption, and a general suspicion of public spending on more agencies, there remains an appetite in some quarters for yet another.
Politically, the case for caution is a hard sell. Anyone who suggests there is a need for care and restraint in framing its scope and powers is met with the reply: ‘‘Why won’t you stop corruption?’
This is the quality of the political engagement we are getting from Labor and the Greens on this front. Anyone in doubt need only review the Hansard from last week’s Senate estimates hearings in the legal and constitutional affairs committee.
Of course, while we must always be on guard against it, Australia has been assessed by transparency International as among the least corrupt places in the world.
The challenge for those prepared to push through the glib politics and engage with the hard work of getting this right is to strike an appropriate balance between the need to ensure a body is a meaningful bulwark against corruption on the one hand, and ensuring appropriate safeguards for those who appear before it, whether as the subject of a complaint or merely as a witness. That’s the complex, important task with which the Morrison government has grappled in crafting the scope and powers of a Commonwealth Integrity Commission.
One of the hardest points to make is the importance of aspects of its work being done out of the public eye. Similarly emotive cries of ‘‘Transparency!’’ and ‘‘What are you hiding?’’ come in response – but they too are flawed.
When University of Queensland professor Nicholas Aroney and former High Court justice Ian Callinan reviewed the then Queensland equivalent of ICAC in 2013, they found there were real risks to the fair conduct of proceedings and of the function of democracy arising from the abuse of the power to publicly announce the referral of a person for investigation.
The practice of doing so at a politically important moment seriously damages the democratic process. It’s a tried and true tactic of Queensland Labor politicians, especially in the lead-up to an election. Premier Anna Bligh referred Campbell Newman, for example, during the 2012 state campaign, with a grubby smear about ‘‘the questions that have been swirling around Mr Newman for weeks now’’ – all of which were found to be without foundation. It is not an isolated example.
It is a sad fact that referral to a corruption watchdog is treated by some as a mere political tactic. Do we really want to empower such behaviour –which I would suggest is itself a form of misconduct? Of course, this is precisely why some politicians salivate at it – an ICAC is a weapon with which to tarnish and take out one’s opponents. No wonder public trust in politicians is low.
body is no more indicative of guilt than a phone call to the police to make a complaint. The latter is treated with discretion while an investigation is under way, and generally becomes a public matter when there is a charge.
It is the trial –with processes for ensuring the reliability and testing of evidence to prevent injustice – that is the public exposition.
Discretion until an investigation is complete is an important protection against the vexatious or mistaken destruction of personal reputations in circumstances when the evidence doesn’t stack up.
When a hearing before an integrity body is in the nature of an investigation, why should personal reputations be treated any less carefully? Before the NSW ICAC, the career of many a public servant has been destroyed in circumstances where that person ultimately faced no charge, and sometimes were merely a witness rather than a suspect. There is no justice in that. Indeed, it could drive a greater cultural secrecy in our public service departments that is in no one’s interests.
In any ordinary legal proceeding, a person facing a potentially negative consequence has the benefit of detailed pleadings and particulars of precisely the allegations of fact and law they face. The NSW ICAC provides no such notice, leading to a process of public ambush that is unfair to witnesses and suspects alike, without any obvious benefit in the fight against corruption.
The strength of our legal system lies in the notion that a person is innocent until proven guilty. The NSW ICAC’s sweeping powers and public processes flip that model, unfairly destroying reputations and careers, often in the pursuit of the base political advantage of a public scandal.
For the Commonwealth Integrity Commission to be effective, complaint making and investigations need to be private. Without that protection, it is not just suspects who suffer. When innocent witnesses and whistle-blowers realise their lives can be destroyed too, you can guarantee sincere public co-operation will go out the door.