This week’s trials of Gladys Berejiklian only confirm the Morrison Government’s largely unspoken fears that a federal ICAC would do the government a lot more harm than good.
The Morrison Government, in theory, supports the creation of a federal version of NSW’s Independent Commission Against Commission. The proposal has been on the table for two years, following the belated (and agonised) decision of Labor nationally to include a federal ICAC among its policy objectives.
The political manoeuvrings over its creation demonstrate how resistant the Morrison Government really is to having a federal body with the powers of the NSW ICAC or Queensland’s Crime and Corruption Commission. Attorney-General Christian Porter is supposedly negotiating with cross-bench senators about the proposal – not with the ALP or the Greens, who have had their own legislative proposals for a strong ICAC-like body on the books for the past three Parliaments. But the cross-bench senators haven’t heard from the Attorney-General since he said he would begin talks with them.
Parliament would pass legislation for a strong ICAC-like body with little resistance (indeed, with much enthusiasm) if the Morrison Government wanted to create one. It doesn’t. And the trials of Gladys Berejiklian only confirm its largely unspoken fears that a federal ICAC would do the government a lot more harm than good.
The only federal ICAC the Government will contemplate is one that is toothless, that has limited powers to investigate alleged corruption, limited authority to do so and will be incapable of publicly embarrassing people who may not themselves be guilty of corruption.
There is a good argument that those who are innocent should not have their reputations damaged through public hearings directed, supposedly, at exposing the faults of others.
Berejiklian is one such person. Probably. Possibly. Maybe? She has certainly not been accused of misfeasance of any sort. Her right to privacy has been violated by ICAC’s public exposure of a relationship with a dud former MP that she had managed to keep confidential (i.e. secret) for four years.
That secret was uncovered by ICAC only incidentally, through its phone taps of the former MP, Daryl Maguire. The forensic problem for ICAC, I assume, was that it could not pursue its case against his attempts to influence governmental decisions such as those that were demonstrated by the phone taps, without revealing who the person was at the other end of the line.
ICAC was no doubt very apologetic to the Premier about what it was about to do – this, apparently, at a meeting a month or so ago – but it felt it had no choice.
Which left Berejiklian with little choice but to terminate the relationship. The questions, mentioned earlier, about whether and when issues of integrity and conflicts of interest might have arisen for her is whether they actually arose (and should have been resolved by her) much earlier, and when she was so concerned about his improper behaviour as an MP that she took the lead in having him removed first from the parliamentary Liberal Party, and then from the NSW Parliament.
The problem with bodies such as ICAC, as the federal and most state governments know, is that you never know where their investigations might lead, and who might be toppled by them (inadvertently or otherwise). They have bagged in NSW a few premiers, so far, and in Queensland several deputy premiers, including recently one who was found not to have been involved in any improper conduct.
But there’s worse. Such properly funded and resourced bodies are far more dangerous to governments than the police, the media or parliament, ombudsmen or even the Auditor-General.
They normally have the powers of a standing royal commission, are able to compel witnesses to answer questions and produce information and documents.
They can’t be ignored, for example, by ministerial staff who are allowed to refuse to give evidence to parliamentary committees. They can’t be fobbed off in the way some ministers in the current government have refused to answer questions from police, making it impossible for investigations to be completed.
It is noteworthy that much of the pressure for the creation of a new federal ICAC-like body is coming from a group of former Supreme Court judges, very conscious of possible infringements of civil rights inherent in such bodies. Many are from Victoria where they want its anti-corruption body, IBAC, given more powers and increased jurisdiction, to give it ICAC’s ability to search out and expose corrupt conduct by any officials.
As for the need for a federal ICAC, it could be justified simply on the basis that it would promote good behaviour by politicians and public servants, emphasising their duty to serve the public above all other considerations and educating them about conflicts of interest they must avoid. Inevitably, the government would want to make sure that if one were created it could not examine the multitude of accusations that have been made about its current and recent failings. Whether it could look back at recent events is another issue hindering its creation.
Footnote: Anti-corruption bodies such as ICAC are not the only weapon that can be utilised against corruption in public bodies, though they are the most powerful. They need to be supported, however, by other measures including effective Freedom of Information legislation, Publication Schemes including of ministerial diaries, Auditors-General, Ombudsmen, Parliamentary Committees and Integrity Commissioners. All are necessary.