QUENTIN DEMPSTER. PM’s anti-corruption commission is a picture of impotence (The New Daily, 14.12.18)

No public hearings? Prime Minister Scott Morrison’s proposed Commonwealth Integrity Commission is deeply flawed in its current conception under the authorship of Attorney-General Christian Porter and the Attorney-General’s department.

Try this from the issues paper released on Thursday: “The CIC will not investigate direct complaints about ministers, members of Parliament or their staff received from the public at large”.

The New South Wales Independent Commission Against Corruption was able to crack corruption at the highest levels of government because it had a “Report Corruption Here” button on its website.

It was this button used for an anonymous tip-off that led to the jailing of former Labor power broker Eddie Obeid, former minister Ian [Michael] Macdonald and a mining union boss over gaming of coal mining licences worth tens of millions of dollars.

Former ICAC commissioner David Ipp QC said the informant told ICAC to get onto a rort: “A minister is involved”.

Equipped with the tip-off directly from a member of the public, ICAC used its coercive powers including search warrant raids on premises and telecommunications intercepts to catch the corrupt.

Instead, the PM’s current model establishes the CIC as an over-arching, two-pronged (law enforcement and public administration) agency that is to take referrals from established government agencies and regulators who must mandatorily report their reasonable suspicions.

But those suspicions must meet a perceived threshold test of criminality.

Who knows what is criminal or corrupt until any suspicious rock is lifted by an effective standing royal commission with the full armoury of coercive powers?

But under the PM’s CIC model “the public will continue to be able to make complaints through existing mechanisms – for example, by reporting a matter to a department or agency, or to another integrity agency like the Ombudsman or AFP. Those agencies will then determine whether the matter should be referred to the CIC in accordance with the referral arrangements indicated above.”

This sets up barriers and hurdles to direct public tip-offs to the CIC, which should be empowered to undertake covert surveillance, or an undercover operation with phone-tap warrants to catch the corrupt “chockers and starkers,” a technical term meaning evidence of the highest probative value.

Unless the participants are incompetent, corruption is conducted in the strictest secrecy. It is difficult to crack unless tactics and powers are covert. But just one thread of evidence, a vague irregularity or a chance sighting relayed by an observant informant can make all the difference.

Although there is provision for both public and private hearings into corruption in the Commonwealth’s existing law enforcement agencies, including the Australian Federal Police, significantly public hearings are to be prohibited for all other areas of public administration. Why?

Prime Minister Scott Morrison says he does not want a “kangaroo court” or a “show trial” he claims has occurred in New South Wales.

The NSW ICAC has been acknowledged worldwide as one of the most effective anti-corruption models. Its procedural fairness practices are subject to judicial review even up to the High Court. It is accountable through the courts in the event of any abuse of its powers.

One good aspect of the proposed CIC is its jurisdiction over corporations and individuals in receipt of federal monies. This covers billions of dollars of taxpayers’ money at the federal level and is more than justified.

Unlike the NSW ICAC, the proposed CIC will not be able to make declarative “corrupt conduct” findings that have so offended those under investigation in that state. It is true that such a finding is carried by the named person to the grave and beyond even if no criminal prosecution or conviction results.

Former Queensland corruption commissioner, Tony Fitzgerald QC, has said there is no need for such findings.

They are potentially unfair, given that an anti-corruption agency is an instrument of the state. Instead briefs of evidence should be handed to a special prosecutor to carry a criminal case through the traditional justice system.

Although the Prime Minister has come a long way to meet the public demand for an anti-corruption commission at the federal level, more work on his model is clearly needed.

Quentin Dempster, is a contributing editor. In 2014 he made a formal submission to a Senate inquiry into the need for a federal ICAC 

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5 Responses to QUENTIN DEMPSTER. PM’s anti-corruption commission is a picture of impotence (The New Daily, 14.12.18)

  1. Yes, I can attest that corruption is growing at an alarming rate. Past employment at the Manager/Director level in the Federal Gov’t enabled me to observe that deterioration over the four terms of the Howard era. I submit that it started rather slowly or benignly and reached a crescendo in the final spasms.

    However, what corruption means to the individual is in the eye of the beholder. Journalists and the wider media sell their wares to a particular mindset. This is described as the transactional model in the ‘Agent Orange’ world view. Progressives by nature have a morally strict interpretation of the word and usually have little or no exposure to the conduct being judged. The less you know of the intricacies of an conduct or ‘sale’, then the easier to moralise a progressive view. Sideline commentators rarely involve themselves with creating wealth. Business is a dirty game. The managers and executives of any business are frequently morally compromised. History has demonstrated that the more flexible business operators tend to push at the legal limits. The moral majority are able to hold their ground until their entities decline. The rate of adoption of unethical behaviours matches the decline of their entities. Where is the all seeing eye that determines when unethical behaviour transforms into corruption. Is the determination varied by the number, or percentage, of industry players that adopted the behaviour?

    I submit that the behaviour of a significant percentage of managers and executives of any commercial enterprise sit within the meaning of the words unethical and corrupt. Sadly, they are usually the more successful. A counterpoint to that success must be a review mechanism to determine what is objectively corrupt from a bell-shaped curve of conduct. This may act as a bulwark, although history has demonstrated that greed and self interest can defeat any noble cause. Hunger is a human characteristic. Noble ideas are the realm of the well fed.

    In conclusion, a Federal ICAC is absolutely required. Deterrence is a powerful tool, yet the most hungry will always tilt at the super-profit motive. I also acknowledge that any review entity must be frequently refreshed. The issue of regulatory capture, and complacency, has not been adequately researched IMHO.

  2. Simon Warriner says:

    C’mon people. Everyone knows that no government ever allows an inquiry that does not have a predetermined outcome.

    With that in mind the prospect of a federal ICAC instituted by either liberal or labor governments being anything other than completely worthless has unbackable odds.

    If we want one we will need to get our heads together and work out what needs to be done to get enough independent represenatives elected at the next federal election to make it happen.

    If we pull our fingers out we could actually make it happen. Quentin Demptster fronting a campaign for voters to think independent could make the difference.

  3. Sandra Hey says:

    Morrison I believe is trying to get in first with his CIC half baked proposal for Commonwealth Corrpution into legislation before his government goes into caretaker mode. This Liberal/Coalition Government has drastically changed the Public Service landscape by diminishing its role in favour of outsourcing to the Multinationals. What contracts have they entered into that the public and the government opposition are not aware of. Take Defense for example, what deals have been cooked up with the fossil fuel and mineral industry. The list is endless, that is why we need a stand alone ICAC that has teeth and ability to impose penalties for corruption. Maybe we should look at the Singapore legislation that has no tolerance for any form of corruption with in its Government ranks. We need the fear of a jail sentence or loss of public respect. The Lobby Industry should also included.

  4. Philip Bond says:

    “The CIC will not investigate direct complaints about ministers, members of Parliament or their staff received from the public at large”. That’s Joh Bjelke-Petersen philosophy, never have a royal commission unless you know the outcome in advance…

  5. Laurie Mills says:

    When creating a Commonwealth Corruption Commission (CIC) , the architects must consider the possibility that the Government of the day’s Attorney General and the Commonwealth Director of Public Prosecuations might act in a way that is not in the Nation’s interest- the 2016 imbroglio between AG Brandis and CDPP Gleeson in 2016 is a case-in-point:

    https://www.afr.com/news/politics/brandis-v-gleeson-attorneygeneral-solicitorgeneral-to-front-senate-inquiry-20161010-grz3si

    This observation suggests that a Commonwealth Integrity Commisions should have its own Act and be established as a independent standing Royal Commission, with power to receive complants from the public, investigate indepedently and prosecute when criminality is uncovered.

    The focus of the CIC should be the Criminal Code Act 1996, Chapter 7 The proper administration of Government:

    https://en.wikisource.org/wiki/Criminal_Code_Act_1995_(Australia)/Chapter_7

    This is comprehensive, powerful and effective anti-corruption legilation when administered as intended.

    Regretably, those with experience of service to the Commonwealth Government know that is it an Act, ‘more honoured in the breach than in the observance’.

    A 2018 Public Servant Commission survey found that ‘nearly 5,000 public servants (5 percent of those surveyed ) witnessed corruption in their agencies as the number of bureaucrats reporting cronyism, nepotism and other misconduct’ and that ‘government staff said they had seen corrupt behaviour, a rate that has risen steadily since a survey in 2013-14 that found 2.6 per cent had witnessed it in their workplaces’.

    https://www.smh.com.au/public-service/more-public-servants-are-seeing-corruption-in-agencies-aps-commission-survey-20180109-h0ffxo.html

    With corrpution growing at such an alarming rate, an independent Commonwealth Integrity Commision with the powers and resources to counter corrputions is clearly long overdue.

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