Government must resist Greens’ integrity push
Chris Merritt 14 July 2022
Published in the Australian Newspaper
Thanks to overreach by the Greens, Mark Dreyfus has a strong incentive to do a deal with the opposition to ensure Senate approval for his proposed national integrity commission.
Changes demanded by the Greens would come at too high a price: they would require the Attorney-General to abandon key elements of the plan he took to the election.
Labor had outlined seven design principles for the integrity commission and accepting proposals put forward by the Greens would mean radical changes.
The integrity commission – as outlined in those principles – was an election promise. Breaking faith with the community at such an early stage in the life of the new government would not be forgotten.
The Greens might believe they are in the box seat on this issue because Labor does not control the Senate. But they are wrong.
The changes they have proposed are not only at odds with Labor’s pre-election principles, they are dangerous.
They would unleash a powerful agency on private citizens who have not engaged in serious and systemic corruption.
Labor’s first design principle means the community voted for an integrity commission that would have jurisdiction to investigate “ministers, public servants, statutory office holders, government agencies, parliamentarians and personal staff of politicians”.
Yet Dreyfus has reportedly been presented with a proposal from Greens senator David Shoebridge who wants the commission to go further and investigate people and businesses outside government.
Labor’s design principles would create a ring-fence around the commission that would ensure its erosion of legal rights and use of coercive powers would be confined to public servants, including politicians.
And it is not as if the commission needs to intrude into the private sector because the existing law is weak; quite the reverse.
Chapter seven of the Commonwealth Criminal Code deals with “The proper administration of government” and has been in place for decades.
Those who do anything with the intention of “dishonestly influencing a public official in the exercise of the official’s duties” can go to jail for 10 years.
Redefining that as “corruption” in order to make work for the commission would create a parallel system. And for what? Jail is a tougher penalty than anything the commission could hand out.
Unless the Greens’ plan is dumped, those in business who scrupulously adhere to their legal obligations could still find themselves doing a “perp walk” to the commission’s public hearings. Try doing business after that.
The jurisdiction of this agency should be confined to the public sector so the conduct of private citizens will be judged only by the standards of the law as applied by the courts – not the edicts of a commission.
To understand the full impact of the Greens’ extremism, it is worth considering the other big item on their wish list: they are not happy with limiting the commission’s threshold for investigations to serious and systemic corruption.
They want the new commission to investigate conduct that falls short of that threshold – who knows by how much.
That would put an end to design principle four which says the commission will “investigate allegations of serious and systemic corruption”.
If Dreyfus accepts these changes while adhering to Labor’s other design principles, the commission will hold public hearings that could involve those in business who are not even suspected of serious and systemic corruption.
They could obey the law, avoid engaging in corruption and still be humiliated at public hearings designed to put on a show for the media.
That, inevitably, would bring the new institution into disrepute and cause political problems for the Attorney-General. Sooner or later every injustice would be laid at his feet.
If the Greens insist on this folly, Dreyfus should walk away and do a deal with the Coalition.
Peter Dutton is on record as saying he is open to supporting an integrity commission. But if he is serious he needs to forget about try-ons such as extending the commission’s reach to unions.
One way or another, there will be a national integrity commission. Right now, the opposition’s goal should be to protect the community by minimising Labor’s destruction of legal rights and spread of coercion. Fighting unions can wait.
A productive approach for the Coalition would be to demand something achievable such as a real appeal mechanism.
At the moment, it looks like the commission will be limited to a narrow judicial review system, which merely looks for errors of law. That would leave people with no redress for findings that are clearly wrong on the merits.
And why not push for the new commission to respect the rules of evidence – unlike its counterpart in NSW, which can base findings on material that would be thrown out of a real court.
Neither of those changes would require Dreyfus to walk away from his seven design principles – unlike the proposals from the Greens.
It is difficult to overstate the importance of the design work on the commission that is now under way.
Real appeals and the rules of evidence would be a good way of heading off the despair and unfairness that is a feature of some of these organisations.
If there is to be a federal integrity commission, it needs to pursue justice, not publicity. It should be an accountable law enforcement agency in which parliament makes the law and the commission investigates, prepares a brief of evidence for the Director of Public Prosecutions and accepts that in this country wrongdoers are punished by real courts, not commissions.
Which parts of the kangaroo court would form part of its national integrity commission? Will appeal rights be discarded? Will the rules of evidence go? And will there be show trials with predetermined outcomes?
The rhetoric about a federal anti-corruption commission based on the NSW model is all about transparency – exposing conduct that could adversely affect public administration.
Coalition and Labor should refrain from making changes to Australia’s justice system with parts of discredited ICAC model
On election day, the community will pass judgment on two contending versions of a national integrity commission. Both models should be judged against this criterion: will they erode the doctrine of freedom under the law ICAC
When Stephen Charles and Anthony Whealy were judges, every word they uttered deserved respect. Now that they are retired, their forays into public policy debates need to earn respect based on their fidelity to the facts, their willingness to disclose relevant information and the quality of their argument.
When the time comes for NSW to do something about its anti-corruption agency, the nation’s most populous jurisdiction could do a lot worse than copy a few ideas from interstate.
This week’s public humiliation of Gladys Berejiklian marks a turning point. The Independent Commission Against Corruption has disgraced itself. It has behaved like a peeping Tom that gets its jollies by prying into a woman’s relationship with her boyfriend, quizzing her about what she meant by particular terms of endearment and leaving her vulnerable to ridicule.
A full appreciation of the exquisite timing involved in last week’s humiliation of Gladys Berejiklian is only now becoming possible.
Last month, when Richard Poole told his appalling story to a committee of the NSW parliament, he faltered, apparently close to tears. After what happened to him at the hands of the state’s anti-corruption commission, and the impact it had on his children, the politicians in that hearing room seemed moved.
In October 2014, when Bruce Lander was South Australia’s Independent Commissioner Against Corruption, he issued a press release with a jaw-dropping headline: “Six South Australian police officers arrested as a result of investigation headed by the Independent Commissioner Against Corruption.”