Where do we draw the line on pork-barrelling?

This seems logical. But will it work?

Based on his statements this week, Dreyfus must have realised it would be unworkable for this commission to be empowered to declare politicians corrupt if they secure grants for their electorates.

Working to benefit their community is what politicians are supposed to do.

Under the approach he outlined it looks like most benefits politicians secure for their constituents will not be referred to as corruption.

This is a green light for politicians to secure discretionary grants – so long as they do not amount to the allocation of public money for a private purpose.

It took Dreyfus quite a while to get the point across that while pork-barrelling would be investigated by the new commission, only some aspects of this practice would be regarded as corrupt.

His first attempt was in The Sydney Morning Herald on Wednesday, when he said: “I see it as essential that the commission should have jurisdiction to investigate what is being referred to as pork-barrelling.

“There is a point at which discretionary grant programs cross the line into corruption. Where you are giving away public money for private purposes, then that is appropriately regarded as corruption.”

He was even more emphatic about the distinction when he spoke to Patricia Karvelas on Radio National. He again narrowed the definition of pork-barrelling to cover only the allocation of public money for private purposes.

Karvelas: You say that you want pork-barrelling included in your corruption body’s remit? So are you saying pork-barrelling will be regarded as corruption?

Dreyfus: No, I’m not saying that. And I haven’t said what you’ve just said I said.

Karvelas: All right, so what do you want to say?

Dreyfus: I’ve been repeatedly asked about pork-barrelling, that’s the use of discretionary grant programs for private purposes …”

The approach favoured by the attorney-general will disappoint those who see corruption everywhere. Yet Dreyfus’s plan still suffers from problems.

The first is that it breaks little new ground. It is already a criminal offence – misconduct in public office – for a public official to use public money for a private purpose.

If a grant or other benefit would not have been allocated but for a collateral improper purpose, those responsible already risk jail time. This is what sent Eddie Obeid to prison along with his son, Moses, and former NSW minister Ian Macdonald.

So if the Dreyfus approach becomes law, the new commission risks covering the same ground as the justice system – but with extra downside for politicians.

Unless the statute creating the commission is tightly drafted, there is a risk that the question of whether a grant is for a “private” purpose will be left to the discretion of the commission.

What politician would seek a grant for constituents while aware this could leave their fate to the discretion of a commissioner?

Engaging in pork-barrelling of the kind that does not amount to corruption could still end the careers of those called before a public hearing.

In that sense, the Dreyfus distinction is well-intentioned but ineffective.

There is another problem: what happens to politicians who are pilloried at a public hearing and declared corrupt only to be acquitted later by a court?

Will the new commission accept the primacy of the justice system? Or does Dreyfus plan to copy the practice in NSW which allows ICAC to continue referring to innocent people as corrupt years after they have been acquitted in the courts?

The fact that the courts and the new commission will apply different standards does not solve this problem. Will the new government countenance a federal legal system that produces conflicting rulings on wrongdoing by politicians?

And what happens if the new commission makes a mistake? Will there be a right to a full appeal, or will the new commission copy the system in NSW where the merits of ICAC’s findings cannot be tested on appeal?

Instead of allowing the justice system to deal with misconduct in public office, there now seems to be a risk that the new commission will build on the NSW tradition of giving priority to show trials regardless of the prejudicial impact this has on foreseeable criminal proceedings.

If it is desirable to bring wrongdoers before the courts promptly, those designing the new commission would do well to consider the delays and difficulties that afflicted the criminal prosecution in NSW of the Obeids and Ian Macdonald.

The source of those problems is a gaping hole in section 31(2) of the ICAC Act which enables the NSW commission to conduct public hearings.

There is no mention of the one factor that should take priority: it does not require ICAC to take account of the possible adverse impact of prejudicial publicity on the fairness of future trials.

Instead of giving priority to the requirements of justice, NSW has botched things by giving priority to show trials. Consider the impact:

When the Obeids and Macdonald were convicted in July last year, it was over events that took place 14 years in the past and had been the subject of saturation media coverage at sensational public hearings.

After issuing suppression orders, asking the media to take down historical articles and ordering a temporary delay, Justice Elizabeth Fullerton abandoned normal practice and ran the trial without a jury.