NSW Liberals have a bit of a thing about ICAC. It was, more or less, a Liberal Party brainchild – seen as a counter to seemingly obvious corruption in the Labor government of the day, three decades ago. Perversely, some thought, incoming Liberal Premier, Nick Greiner, popularly regarded as a cleanskin was its first victim. Later he could claim that he was “exonerated” from a corruption finding by the NSW court system, but, whether that is true or not, it was too late. He was right out of politics.
Barry O’Farrell, another popular and decent Liberal Premier was the next victim, after he realised he had misled ICAC about whether he had received an expensive bottle of wine from a person seeking favours from government. He need not have gone, and no corruption finding against him was in prospect after it became clear that his memory was at fault, but his sense of honour told him to go. And he did.
Gladys Berejiklian faced continued questions about pork barrelling, including during by-election campaigns. It emerged that one of the beneficiaries of her largesse was a secret lover, a man already the subject of adverse ICAC reports. Her supporters, and Scott Morrison in opposing a federal ICAC, have created a legend of ICAC abuse of power – a kangaroo court. She said that she felt impelled to resign both because of the prospect of invasions of her privacy and her realisation that those continuing inquiries would be a total distraction from her premiership. But the affair was a sideshow. ICAC was asking hard questions about open pork-barrelling, and it seemed clear was concluding that it was improper and corrupt. But it’s at the Metherell affair that those thinking of Barilaro are looking.
In 1992, Terry Metherell, a Liberal minister who had quit his party and gone to the crossbench in a huff, made it known that he was willing to resign from his safe Liberal seat if given a suitable public service job. Then Premier, Nick Greiner, thought it a good deal and arranged the creation of a job in the NSW public service, then engineered the appointment of Metherell to it.
An investigation by ICAC found the deal – which had provided Greiner with a political benefit – was corrupt within the meaning of ICAC legislation. Greiner resigned as premier. Well after Greiner was right out of politics, the NSW Court of Appeal decided – two-judges to 1 – that the thinking of the ICAC Commissioner was flawed. He had not adopted a legalistic and objective approach in deciding whether Greiner could have been sacked for what he did.
The presiding judge in the majority was then NSW Chief Justice Murray Gleeson, later Chief Justice of Australia. But his decision has been much criticised in the academic legal literature for being at least as subjective as the ICAC Commissioner’s, as well as for its being devoid of guidance about what the correct approach might be. A governor can sack a premier for various forms of misconduct, but there is nowhere in the world that the process by which this might happen, or the “objective legal” criteria, is described.
I suspect all the judges thought that while Greiner’s actions were wrong, they were not so wicked as to deserve dismissal. Worse things had happened at sea. There was a long history, at all levels of Australian government, of improper political interference in public service jobs, but it was only by a fairly recent “new morality” in public administration that it was seen to be a serious wrongdoing. Though there was every evidence of tightening standards of probity in public administration, Gleeson was no pioneer of articulating the trend.
The higher the rank, the higher the standard demanded
The judge in dissent, Justice Dennis Mahoney, was of the new trend. He thought the abiding principle was that public officials should not use their legal powers for private gain, even political advantage. If anything, the higher one was up the tree, such as being a minister, the higher the standard expected.
But he fell short of seeing the finding as a moral judgment on Greiner. Greiner, and his ministerial colleague, Tim Moore, were “good men who have, by an error as to the seriousness of what they were doing, fallen foul of the ICAC Act,” he said.
Thirty years on, many observers are not so kind. One way of putting it is that the new morality has become tighter, in part from public dismay at the very bad standards set by politicians throughout the western world, including the United States and Britain.
Mendacity, malfeasance and misbehaviour that would have been political suicide only a generation ago, have become more common. More and more governments, here and abroad, have integrity and anti-corruption bodies. Many of those concerned with the integrity of public institutions – including the judiciary – are taking a stronger line on the notion that politicians and public servants are stewards and trustees of the public interest, who can be guided only by public interest considerations.
That need not require being agnostic about the interests of particular groups in the community. But at the least it involves equal space for every snout at the trough.