Porter’s Commonwealth Integrity Commission gets a lukewarm reception

By Stephen Easton

Friday December 14, 2018

The Commonwealth Integrity Commission proposed by the Morrison government yesterday is highly unlikely to become a reality, but serves as a marker of where the federal Coalition currently stands on integrity reform.

Overall, the new statutory body described by Attorney-General Christian Porter’s consultation paper generally received lukewarm support from commentators, experts and advocates, and very little support in parliament. Shadow attorney-general Mark Dreyfus strongly doubts the government will introduce legislation in the very few days left on the sitting calendar for this term, in any case.

The Coalition proposal has been criticised for banning public hearings for parliamentarians, their staff and any public sector employees not covered by a more stringent regime for law enforcement integrity, which would apply to a wider span of agencies than the current arrangements, up to about a fifth of the whole sector.

Its knockers also say its proposed remit would be too narrow – the commission would only investigate potential criminal offences, including new ones especially for this issue, and would not look back retrospectively.

Some pundits see it as a political ploy to neutralise the Labor commitment to a stronger version; others see it as a good step forward. Opposition leader Bill Shorten said it was not a “fair dinkum” proposal.

“Retrospective criminal law is probably the most serious and unwarranted thing that any government anywhere, in any democracy can do, so we’re not doing that here,” Porter said yesterday. Other integrity commissions can look back at past issues, and the opposition has said they would agree to such a body, suggesting the current government is trying to exempt itself.

One view running counter to the chorus calling for a stronger public sector integrity agency came from public administration professor Gary Sturgess of the Australia New Zealand School of Government, quoted in The Australian as “the architect” of the New South Wales ICAC.

According to the report, Sturgess believes “the federal government has had more serious problems than is usually admitted” but is not persuaded that very serious widespread corruption is likely to exist at Commonwealth level, the likes of that which led to the NSW agency, and others like it in Queensland and Western Australia for that matter.

Federal ICAC proponents had mostly made the case on the basis of declining trust in governm­ent and increasing perceptions of corruption, he noted.

There are a few case studies on their side, however, like corruption in Australian Border Force and bribery by Australia’s polymer banknote sales reps, to add to a general sense that politicians routinely place other interests and strategic political goals above the public interest

The campaign continues

Transparency International Australia and The Australia Institute, two key organisations that have coralled supporters of a federal anti-corruption body into a coherent campaign, both applauded the development as a positive step but argue the Coalition’s preferred arrangements are insufficient.

This is a common view shared by the opposition and members of the cross-bench like former Army officer Andrew Wilkie, who famously left a secretive role in the nation’s peak intelligence agency in disgust at the dubious justification for Australia’s participation in the 2003 Iraq war.

“I’m pleased that the Federal Government has finally come to the table on establishing a national integrity commission,” he said. “But the plan that the Prime Minister announced today is fundamentally flawed and entirely unacceptable.”

The Australia Institute described Porter’s proposal as “a welcome admission that corruption does not end at state borders” and a big win for its campaign.

“But the Prime Minister and Attorney General’s proposal comes up well short of best practice,” it adds in the statement. “In particular, the inability to take public complaints and make its own referrals; the lack of public hearings; the limited jurisdiction and insufficient funding means today’s announcement is not good enough.”

Victorian silk Fiona McLeod, who chairs TIA and is a past president of the Law Council of Australia and the Australian Bar Association, among many other senior roles in the legal profession, believes a federal integrity commission needs to have “a strong coordination role for all agencies and the power to hold public hearings for all matters where it is in the public interest to do so”.

This essentially means giving the commissioner the power to decide — based on a public interest test in the legislation — that if clear evidence of extremely serious corruption arises, the risk to individuals is, unfortunately for them, outweighed by the importance of exposing and dealing with it in public.

“We would like the new integrity regime to also include parliamentary standards for elected officials and their staff, and good mechanisms for the public and whistleblowers to provide information or make complaints,” McLeod adds.

A huge leap forward for lawyers

The Law Council “strongly welcomed” the government’s proposal as a good step forward, typifying the view that some sort of integrity reform is much better than none at all.

“This is a huge leap for Australian public accountability and transparency and for that the Government needs to be applauded,” said president Morry Bailes, promising the council would take a close look at the ideas.

“The CIC would apply more stringent accountability measures to not only all government bodies, departments and staff, but also members of parliament and their staff.”

Bailes took a middle line, noting that “official corruption is a serious issue here and around the world, undermining democratic processes, jeopardising economic development and threatening stability” but also warning of the risks to the rights of individuals.

“What we must not have unintended consequences which could have devastating outcomes for those affected. People can have their lives destroyed if we don’t get it right.

“It is also essential the coervice powers exercised by the CIC through private chamber hearings are not abused and that there are rights enshrined to protect legal professional privilege.”

There is strong support for a much stronger ICAC-style body from many eminent individuals in the legal profession, however, including many former senior judges that have joined the campaign, several of whom have acted as anti-corruption commissioners themselves. Most, unsurprisingly, have high confidence that their profession is full of people who can responsibly balance strong royal-commission-like powers with the rights of individuals, without undermining the separation of powers.

On the side of caution

Others on Porter’s side quoted in the media include a small band of longstanding ICAC critics like the Rule of Law Institute and the Institute of Public Affairs. Then there is independent MP Bob Katter, whose views on this are informed by his time as a minister in Queensland’s Bjelke-Petersen government. Katter supported the Fitzgerald royal commission that exposed widespread corruption in those years, but remains one of the few people who still publicly maintain that the premier himself was hard done by.

The (since reformed and renamed) Criminal Justice Commission that was established soon after went too far, he said recently, like the old English Star Chamber or the Spanish Inquisition. “Dozens, maybe a hundred, totally innocent people were hung, drawn and quartered without any real chance of defending themselves,” Katter claimed. “In many of the cases, they were the courageous heroes that had been fighting corruption.”

Bjelke-Petersen was “a man of honesty and decency” whose name was “besmirched” by the media reporting at the time, according to Katter, who is never afraid to voice an outsider opinion.

Others making this sort of argument generally stick to more recent examples from NSW, such as the ICAC findings about former State Emergency Service commissioner Murray Kear, who was acquitted of subsequent charges in court.

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