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