Keeping them honest? This argument is out of step

Chris Merritt                 21 May 2022

Published in the Australian Newspaper

This book is perfect for those who believe Scott Morrison’s government is rotten.

As a pre-election political tract, it serves a purpose – at least for those who were never going to support the Coalition. It brims with abuse about Morrison’s “difficulties with the truth”, “contemptible” policies and his government’s “thoroughgoing lack of integrity”.

Abuse, however, is no substitute for facts.

This book is supposed to put the case for a “genuine” national integrity commission. Yet it will disappoint those seeking enough information to weigh the costs and benefits of establishing a federal equivalent of the NSW Independent Commission Against Corruption.

This is quite a failing given the authors, former judge Stephen Charles and researcher Catherine Williams, are closely associated with the Centre for Public Integrity, an organisation that has deep links with ICAC.

Those with a reasonable understanding of the ICAC system will notice some inconvenient facts have been sanitised in this book while others are simply missing.

Why, for example, do the authors write that appeals against ICAC’s decisions, “almost without exception,” have been dismissed, while failing to point out that NSW does not permit the merits of ICAC’s findings to be tested on appeal?

The only form of appeal from ICAC is judicial review – which focuses on the narrow question of whether the commission has made an error of law such as exceeding its jurisdiction.

And when they write that a federal ICAC must have “appeal and/or review rights”, do they mean a real appeal on the merits, or a Clayton’s appeal based on the NSW system that rarely succeeds?

The authors also assert that this country is obliged, under the United Nations Convention Against Corruption, to ensure the existence of a body specialised in combating corruption. They write that Australia has not established such a body and is therefore “in continuing breach of our obligation under this convention”.

That is a bit of a stretch.

This treaty obligation, which is outlined in article 36 of the convention, does not mandate the establishment of a single, all-powerful anti-corruption commission.

It gives countries the option of establishing “a body or bodies” – which is broad enough to accommodate the current multi-agency approach to fighting corruption.

It is also unfortunate that Charles and Williams, after raising the Convention Against Corruption, do not address the apparent tension between the requirements of article 36 of the convention and a federal ICAC based on the NSW model.

The first requirement of article 36 is that anti-corruption bodies should be established by each country “in accordance with the fundamental principles of its legal system”.

This means a future federal government, of whatever political make-up, would be treaty-bound to fight corruption using agencies that respect the checks on arbitrary power that are fundamental elements of the Australian legal system.

Those elements, which have been set aside for ICAC by NSW, include the presumption of innocence, the right to silence and the unqualified right to test the veracity of prosecution witnesses.

The states are not party to the UN convention but the federal government is.

So unless a future national integrity commission incorporates the normal checks on power that have been set aside for ICAC, it is hard to see how such a federal agency could be established “in accordance with the fundamental principles of the legal system” as mandated by the convention.

Charles and Williams are also silent on the second condition in article 36 which would require a national integrity commission to fight corruption “through law enforcement” – something that does not happen in NSW and would not happen under the scheme proposed by the authors.

They write that the primary role of an anti-corruption agency should not be to ensure convictions for criminal offences, nor should it be concerned with gathering evidence for criminal prosecutions.

Instead, they want this agency to focus on publicising what it considers to be serious corruption but without bothering with the rules of evidence – another fundamental element of the legal system.

This is not a minor problem. The UN’s technical guidance for the convention says governments might wish to consider that “article 36 lays emphasis on law enforcement specialisation”.

Much of this book draws on reports by the Australian National Audit Office on political pork barrelling. The audit office did the nation a service by unearthing these scandals and the government will be held to account on election day.

Yet the authors have included the audit office’s work in the apparent belief that it proves the need for a NSW-style ICAC at a federal level. They have actually proved the reverse.

If political excesses have already been uncovered and publicised by the audit office, does the nation really need another taxpayer-funded organisation doing the same work?

If there is to be a federal ICAC would it not be more sensible for such an agency to focus on enforcing the law and respecting fundamental principles – as required by our international treaty obligations?

Some might be surprised by the scale of the change that could follow the establishment of a NSW-style federal ICAC.

In one section of the book, the authors cite with approval a 2018 open letter from 34 retired judges seeking a national anti-corruption agency “with overall jurisdiction to investigate all public decisions and conduct”.

This would transform the Westminster system. Instead of being accountable to parliament and voters for political excesses, the judges’ plan would subject future governments to the risk of public hearings into “all public decisions and conduct”.

Unelected commissioners would pass judgment on matters that are, in essence, political but would be redefined as corruption.

Even when the honesty of public administration is unquestioned, the authors’ proposed federal ICAC could still intervene.

It would be empowered to hold public hearings and make corruption findings not only when honest administration has been harmed, but whenever the federal ICAC believes it “could” be harmed.

This not Russia. People in this country should be punished for proven breaches of the law – not the mere likelihood that a standard imposed by a commission could have been breached.