Mr Porter’s proposed Commonwealth Integrity Commission, in the public sector division, will not be able to investigate supposed corruption, won’t discover any corruption, and will certainly not expose any.
It is, on the contrary, designed to protect parliamentarians and public servants from investigation and exposure. But Mr Porter’s attitude has a stench of hypocrisy about it. That the law enforcement division retains the power to conduct public hearings shows he is quite content for those employed in, or dealing with, the 11 law enforcement agencies, up to their highest levels, to be investigated in public, and (on his reasoning) to have their lives and reputations destroyed.
The Attorney-General Christian Porter has at last released his draft bill for a proposed Commonwealth Integrity Commission (CIC). This Bill had been ready for more than six months, but from Mr Porter’s statement to the media, the Bill shows very little departure from his original proposal released in December 2018.
Mr Porter said the Bill has the following elements:
- The CIC is to be divided into halves, the stronger consisting of a law enforcement division, which covers such bodies as the Federal Police and the Department of Home Affairs, and which is able to hold public and private hearings; the weaker half covers the remaining public sector, including parliamentarians and their staff.
- The CIC’s primary function is to investigate serious criminal conduct in the public sector. It will only investigate serious criminal offences and will not make findings of corruption at large.
- A consequence of the second point is that the CIC will have a threshold that must be passed, a reasonable suspicion of a criminal offence, before it can commence an investigation.
- The law enforcement division may receive complaints from any whistle blower leading to an investigation. The public sector division may only receive a referral from one of the existing agencies (e.g. the Federal Police), not from an individual whistle blower.
- The public sector division has no right to hold public hearings.
- The public sector division will not make public reports of its investigations, it will only create briefs of evidence which would go to the Director of Public Prosecutions for public trial.
Before dealing with these elements, which clearly demonstrate Mr Porter’s dread of an effective anti-corruption body, a comparison should be made with the record of Victoria’s Independent Broad-based Anti-corruption Commission (IBAC).
IBAC was established by the Baillieu government in 2011, then with a very restricted jurisdiction and thresholds to overcome, but strengthened in 2015 by amendments under the Andrews government which included in the definition of corruption the offence of “misconduct in public office”. IBAC has conducted only eight public hearings in as many years, particularly into the Education Department, twice into the Transport Department and at the end of 2019 into the Casey Council.
The investigation into the Education Department revealed serious corruption, with senior officials diverting millions of education money into a slush fund for their extravagance. During the inquiry the Department immediately made dramatic changes to rules and procedures and set up a new branch to ensure that such corruption could never recur.
The recent Casey Council investigation (still incomplete) showed that very substantial payments were being made in an attempt to obtain rezoning of a large area from industrial to residential which, had it occurred, would have increased the value of the land by as much as $100 million. Politicians from both sides of the political fence were spotlighted in the inquiry. No one in Victoria has raised any serious complaint about the “smearing” of reputations, nor about IBAC’s conduct of public hearings. There has been general acceptance that IBAC’s record has been excellent and the community has benefited greatly from the public exposure of corruption that these hearings have produced.
The argument for a strong National Integrity Commission (NIC) has usually started with the assertion that corruption follows money, power and influence; and the most substantial accumulation of each in Australia is to be found in Canberra. The cat was let out of the bag recently by Morgan Begg in an article in The Australian (30/10) opposing the establishment of a strong NIC when he said that “government wrongdoing and shortcomings in integrity are inevitable consequences where bureaucrats and politicians have vast powers and opportunities to squander taxpayer money”. That is exactly our point.
Governments of both political persuasions have repeatedly shown a willingness to use governmental power and the money they control for the benefit of their donors, friends and associates; to return favour for favour and to gain political advantage. Transparency International defines corruption as the abuse of entrusted power for personal, private or political gain.
If one needed an example – there are many in the seven years of this government – one need only turn to the “Sports Rorts” affair. The Auditor-General’s report exposed with absolute clarity that proper process was disregarded by Senator McKenzie’s office and instead chosen marginal electorates were preferred in order to bolster success in the 2019 election. Later production of emails and documents showed that the Prime Minister’s office was significantly involved in the selection of the electorates that were to receive grants. Far from apologising or showing any contrition after the exposure of this blatant political corruption, the Prime Minister and his Cabinet colleagues (those who commented) repeatedly said that Senator McKenzie had done nothing wrong, merely carried out the proper ministerial function of making discretionary decisions, much to the benefit of the community.
The Coalition was then exposed in an egregious misuse of power and public money and these excusatory comments showed that the speakers condoned, even approved of, what had occurred. The Auditor-General, whose work exposed this public corruption, and later the government’s 2018 purchase of land from the Leppington Pastoral Company for the new Sydney Airport, has promptly had his funding cut by this government; and at a time when the government is embarking on the largest expenditure of taxpayers’ money in the history of this country.
Returning to Mr Porter’s CIC, the first question is why there should be any such division of function between the stronger and weaker half. He asserts that there is a “higher risk and much greater threat of corruption inside law enforcement agencies insofar as they are the agencies that are meant to enforce the law”. There is no obvious basis for this. On the contrary, corruption in the public sector is likely to be more deeply concealed, more prevalent and difficult to detect than in the law enforcement area.
For example, there have long been allegations of systemic fraud in the Defence Department, and of staffers colluding with contracting companies to design well-paid jobs for them and improper contracting processes. The absence of the stronger investigatory powers in the public sector suggests the intention is to make corruption in this area more difficult to detect. It must certainly give added protection to parliamentarians and their staff.
In the public sector division, the limited jurisdiction of the CIC, and the threshold that allegations must have a reasonable suspicion of serious criminal conduct, will prevent the CIC from investigating serious corrupt conduct that does not constitute a criminal offence. There is no adequate federal control of political donations, no caps and no requirement for the immediate publication of donations. There is a revolving door for ministers and public servants to leave a post and take up a position in private industry. The impetus to reward large political donors is intense, since if they are not rewarded, the donations will cease. The CIC’s very limited jurisdiction in the public sector will prevent much corruption, and even the Sports Rorts affair, from being investigated.
The fact that whistle blowers may not make direct complaints to the public sector division, that such complaints must be filtered through an agency such as the Ombudsman or the Federal Police, is absurd, and can only be intended to stifle whistle blower complaints and stunt the investigative process at the outset.
Most commissioners of anti-corruption bodies strongly assert that public hearings are essential to their task of fighting corruption. These expose corruption and misconduct to the public; they increase public trust that allegations of misconduct are being fairly investigated; they make investigations more effective by encouraging more witnesses to come forward; they educate the public sector and the community about corruption; and they deter others from engaging in corruption. ICAC and IBAC were both set up by conservative state governments, and ICAC has been repeatedly lauded by the state’s premiers for the work it is doing. In 1989 the Fitzgerald Commission was able to uproot the corruption that had engulfed Queensland by holding public hearings. Fitzgerald himself said:
“The proposal to close anti-corruption hearings and repress information on public issues to save those involved from embarrassment demonstrates a fundamental ignorance of democracy. Effective democracy depends on informed voters.”
The holding of public hearings by Royal Commissions has been repeatedly endorsed by judges at the highest level of our courts.
Mr Porter will have no truck with public hearings, and says that his government’s attitude will not change. He says that the government is not intending to repeat some of the mistakes of state bodies at a federal level and that people’s lives and reputations in the public sector have been destroyed when there’s been no prosecution. This is another basic misconception of the role of an anti-corruption commission. It has never been a function of anti-corruption bodies to obtain prosecutions or convictions. The fact that evidence given under oath to such bodies is never to be used against the deponent in a later prosecution demonstrates that the intention is to achieve the exposure of the conduct, not the conviction of the deponent. That is a matter for the DPP of the state, to obtain the necessary proof without the assistance of the deponent’s admissions.
But Mr Porter’s attitude has a stench of hypocrisy about it. That the law enforcement division retains the power to conduct public hearings shows that he is quite content for those employed in, or dealing with, the 11 law enforcement agencies, up to their highest levels, to be investigated in public, and (on his reasoning) to have their lives and reputations destroyed. Furthermore he must also be well aware that in 2012 the Commonwealth parliament enacted the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act, which provides for the investigation and hearings of allegations against federal judges including those of the High Court, and by s.23 provides that such hearings shall be in public. So also the Hayne Royal Commission into our banking industry held all its hearings in public.
There is undoubtedly a risk that public hearings may damage reputations. The intention of such hearings is indeed to expose misconduct. The Auditor-General’s report into the Sports Rorts demonstrated the misconduct of the Coalition. But it is vital that the damage to reputations be contained, and that the innocent should be protected. It is essential therefore that there be natural justice in any hearings of the NIC, those involved should have notice of what is being investigated, they should have legal representation and the ability to respond in advance to any adverse finding. But first and foremost there must be detailed and careful investigation before any public hearing, so that those conducting it know exactly what is to be put to witnesses, and reputations will not be damaged by accident.
Where then are the examples of those investigated whose reputations were destroyed by anti-corruption bodies? ICAC has made one serious mistake, the attempt to investigate Margaret Cunneen SC. That was plainly an incorrect exercise of discretion, stopped by the courts. But are there any others? IBAC has made none.
Finally the faults of the proposed CIC include that there will be no public report in the public sector division. The intention, according to Mr Porter, is that the CIC should investigate, and create a brief of evidence to refer to the DPP, rather than make a report. What use would the Hayne Commission have been, if conducted on such a basis? The public would have learnt nothing unless and until a prosecution arrived at a courtroom.
Mr Porter’s CIC, in the public sector division, will not be able to investigate supposed corruption, won’t discover any and will certainly not expose any. It is, on the contrary, designed to shield and protect parliamentarians and public servants from investigation and exposure. As an anti-corruption commission, the public sector division is worse than useless, it is a sham, designed to mislead the Australian public into believing that this government is serious about dealing with corruption.
Australia needs an effective anti-corruption commission with the power to conduct public hearings.