Keeping them honest: A book review

Apr 16, 2022
A book with fanned open pages
In December 2018 no less than 34 retired judges wrote directly to Prime Minister Morrison. Image: Pixabay

This book Keeping Them Honest: the case for a genuine national integrity commission and other vital democratic reforms puts solidly the case for a Commonwealth Integrity Commission known in the trade I’m told as a CIC.

So you’ll see many references to CICs as you go through the text. It’s jointly authored by Catherine Williams and Stephen Charles. I’ve been privileged to know Stephen for many years but have only just met Catherine who’s contributed chapters 10, 11 and 12 which deal not so much with the case for an independent Commission, but which at other vital democratic reforms which help to flesh out the book. Catherine comes to us as the research director of the Centre for Public Integrity. Her chapters deal with: Behind the scenes: how to limit secret influence; stopping the lies: how to protect the integrity of elections; and cutting out the pork: how to reform the expenditure of public money. So there’s plenty of political meat which is to be found in Catherine’s chapters. I think Catherine will forgive me for focusing mainly on Stephen’s chapters tonight as I think it’s the case for a national integrity commission which is front and centre, particularly as we await the announcement of an election.

All of you I presume know Stephen. You’d be aware that he had a very distinguished legal career here at the Melbourne Bar before then being a foundation judge of the Court of Appeal. He took silk in 1975. I came and read at the Bar here for a year in 1981. I was aware that at the Melbourne Bar there was a small coterie of barristers who were very trusted by both sides of politics. Whenever there was a very difficult political issue, they were relied upon for first rate legal advice. I knew that Stephen Charles was a member of that very small coterie. For example in 1977, he was asked to advise Prime Minister Malcolm Fraser on the business affairs of treasurer Sir Phillip Lynch. I labour that matter tonight to make the point that we’re not dealing here with a trendy lefty who came along and said, ‘Let’s see if we can do in the Tories.’ We’re dealing here with an author who has spent his life looking at these issues – at what you might call the interface of law, policy, politics and the public good.

If you’re any doubt about that, consider some other briefs he took. In 1983 he was counsel for ASIO in the Coombs Royal Commission – not the sort of brief which is handed out to someone who is a hot head. Then he was counsel for the applicants including the Commonwealth and the Master Builders Association in the proceedings for the deregistration of the BLF – hardly likely to endear him to the far left of Australian politics. And then he was counsel assisting the parliamentary Commission into the conduct of Mr Justice Lionel Murphy.

Now if that’s not enough to convince you, take also into account that he was the Victorian Bar Council chairman, president of the Australian Bar Association, before then becoming a judge of the Court of Appeal. I think it’s also worth noting that he was a member of the Commonwealth Administrative Review Council for three years between 1989 and 1992 – a council which was set up specifically to look at that interface between law and policy at a Commonwealth level.

The issue about which the authors write has been very dear to Stephen’s heart for some time. Back in 2014, he wrote this in the Victorian Bar News:

‘It is high time that a comprehensive independent integrity system was created for the Commonwealth, incorporating a general purpose Commonwealth anti-corruption agency with educative, research and policy functions and all necessary powers, and which is subject to parliamentary oversight.’

That was written eight years ago. I would have thought it is now taken to be self-evident by anyone who is concerned about the public interest in Australia.

There are many topics covered in the book: everything from East Timor, the betrayal and cover up and the ghastly case against Bernard Collaery; historical cases of corruption: a light touch on the Rum Corps before jumping to Tony Fitzgerald in my home state of Queensland, the Costigan Commission here, the National Crime Authority; then looking closely at the New South Wales model of ICAC; the development of the Victorian model of IBAC; the risks of corruption in the federal arena; and then the case for public hearings; before delving deeply into the murkiness of the sports rorts and the carpark rorts.

The book opens up the questions which I wouldn’t pretend to find finally answered to my complete satisfaction. But they are questions which now need to be raised in the public debate: about what should be the jurisdiction of such a Commission; what’s the definition of corruption; and what is the place and when would be the trigger for public hearings.

I think Stephen does a very good job of dealing with the cases which have arisen in New South Wales which have caused some concern about the degree of publicity that occurs around ICAC. He looks particularly at the cases of Nick Greiner and Barry O’Farrell, state premiers who then lost office or went out of office, and Margaret Cunneen. I make the point about them because living in Sydney, I knew each of them slightly, and knew some more of their doings you might say. But I note that they now all hold various esteemed positions despite what went on at ICAC. Margaret Cunneen for example is President the Rule of Law Education Centre and appointed to the attorney general’s expert panel on the implementation of the Commonwealth Commission. Nick Greiner is Australian consul general in New York having been president of the Liberal Party. Barry O’Farrell is High Commissioner to India.

So we have the question about when is publicity warranted in these sorts of cases. Stephen rightly points out after he’s dealt with those controversial cases that we now have three former chief justices of the High Court, Sir Anthony Mason, Sir Gerard Brennan and Murray Gleeson who have expressed their support for a Commission being entitled to hold public hearings. It’s not a bad trio you’d have to admit.

And then he goes on to point out that in December 2018 there were no less than 34 retired judges who wrote directly to Prime Minister Morrison saying that there was a need for action.

They wrote:

‘Dear Prime Minister Scott Morrison

‘Confidence and trust in government and public institutions is at an all-time low. When this confidence and trust is diminished, pessimism, divisiveness, and conflict increase; and social cohesiveness is harmed.  As a result, the economy and the welfare of all Australians suffers. Ultimately, as international experience has shown, democracy itself is threatened and may be irreparably damaged.  Governments ignore at their peril demands by citizens to combat corruption with vigour.  A major cause of the current deterioration in trust is the suspicion that corruption permeates many governmental decisions and actions.  Corruption, broadly understood in this context, occurs when those in public office place private interests over the public good.’

Wouldn’t you think if you were conservative Prime Minister and you received a letter from 34 retired judges that you might take some action, or if you then promised that you would do something by the next election, that you would honour that promise.

It’s interesting to note that Stephen takes up the issue that the politics has become so nasty that it got to the stage that we had the Prime Minister describing ICAC in New South Wales as a kangaroo court on almost the very day, 28 November 2021, when the New South Wales Liberal premier was asked, ‘Is ICAC a kangaroo court?’ He said:

‘I don’t think so. I mean, there’s obviously been challenges from time to time, and you know, all areas of New South Wales government get criticised, but ultimately ICAC does a very important job, and it gets rid of corruption from public life. And that is incredibly important, and we’ve seen over many years in New South Wales incredibly important work undertaken by the ICAC. And not just in uncovering corruption but preventing it as well, and providing advice to government. So I think they play a very important role here in New South Wales.’

That sounds to me anything but a kangaroo court.

Stephen points out in the book that Australia has plummeted in the ratings by Transparency International. In 2012 we were ranked 7th in the world, level with Norway. Over the following decade we dropped 11 places to 18th. It was the steepest decline of any nation assessed by Transparency International.

Stephen in a masterly fashion outlines the problems with the Coalition’s exposure draft of legislation. He says:

‘The exposure draft proceeds on a flawed assumption. The primary role of an anti-corruption agency is not to ensure convictions for criminal offences, nor is its core task concerned with gathering evidence for a subsequent criminal prosecution. Its primary aim is to uncover serious corruption in the field of public administration and to expose it publicly where that is appropriate.’

He also highlights the unfortunate consequence of the Coalition’s failure to debate the matter: ‘One of the unfortunate consequences of the failure of the Coalition government to engage in the debate about a national integrity commission is that by sitting on the sidelines, it has been unable to debate the merits of other anti-corruption bodies.’

He makes the point that the call for a suitable CIC is not driven by a critique of just one political party when in government: ‘Community demands for the establishment of an effective national integrity commission are not directed at any one party. They are the result of a strengthening concern at a perceived lack of transparency and integrity in government, that our politicians believe they are entitled to spend our taxpayers’ money in any way they choose, and what Professor Anne Twomey has called ‘the disrespect for the rule of law shown by persistent breaches of the Constitution of the Commonwealth of Australia, statutes, guidelines and ministerial standards when it comes to the allocation of grants to community groups’.

So to quote Stephen’s conclusion:

‘Given everything that has been observed or alleged in these events — mendacity; duplicity; contractual fraud; criminal trespass; invasion of legal privilege; breach of UN conventions; contempt of court; denial of fair trial; failure to act as model litigant; larceny on a grand scale [and I presume this litany of faults has all been passed by the defamation lawyers] — the community will understand why it is that Australia needs, and the community demands, an effective national integrity commission.’I note that in the Budget Reply speech the other night, Mr Albanese said: ‘We will create a national anticorruption commission, because public money should always be invested in the public interest.’One final residual reserve I had was wondering if this is the terrain where you want judges and retired judges to trespass?  It turns out that the foreword to the book has been written by none other than one Sir Gerard Brennan who happens to be my father and I’ve known him pretty well over the years. He’s now almost 94, and he’s one which I think those of you who have known him as lawyer would know that he has a considerable judicial reserve, and he’s kept that with him even in retirement. I said to Stephen that he even thought it slightly improper given Mr Hewson’s unavailability that I would be called upon to launch a book in which he had written the foreword. I assured him that there was no prospect of bias or conflict in anything I might say tonight. But I will conclude with a quote from my father foreword because I think it goes right to the point as to why we need judges like Stephen Charles in the public square on this issue. Brennan said this:

‘Judges and former judges do not usually enter the public political arena. The judiciary does not have a political agenda. Its function is to resolve disputed facts and to apply the law to the facts as found, unaffected by political influence. Lest intervention on political issues might seem inconsistent with political independence, even former judges usually abstain from political comment. But corruption that erodes honest administration and the disregard of the rule of law in the pursuit of political power are not issues about which former judges must or should be silent.’It’s worth remembering that these words come not only from a former Chief Justice of Australia but also from the inaugural Chairman of the Commonwealth’s Administrative Review Council.

So I commend Stephen Charles on his public eloquence and I commend you Catherine in joining with him in such a splendid book Keeping Them Honest and I hereby declare it launched.


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