Public corruption hearings at Commonwealth level: a 'risk worth taking' for integrity?

By Stephen Easton

May 13, 2019

Labor would at least match the Coalition’s commitment to spend $104.5 million over four years on a federal anti-corruption commission, and while 80% of Australians support one with a full suite of strong powers, public hearings remain the key issue.

While Labor has committed to an agency that would delve much deeper into the public sector than the Coalition’s minimalist Commonwealth Integrity Commission — and please far more punters right across the political spectrum, according to the latest polling — it will only make a detailed proposal if elected, after yet more consultation.

“And if … during the course of the consultation it appears [$104.5m over four years] is an insufficient amount, then we will ensure that there is a sufficient amount,” Shadow Attorney-General Mark Dreyfus told the recent National Integrity Forum. Independent experts suggest about four times as much funding would be required.

The opposition has committed to public hearings for the most serious matters, though its members are still wary of where that might lead.

“It’s a terribly vexed question,” Dreyfus said. “I’ve had more discussions with my colleagues about this question — of whether or not there should be some capacity, and if so what capacity for public hearings — than on any other single aspect.”

This particularly concerns politicians because they trade on their reputations, he said. He worries that just giving evidence at a public corruption inquiry can be presented as a hint of misbehaviour in the media.

“Politicians do not like being investigated, full stop.”

Dreyfus said this happened when the New South Wales Independent Commission Against Corruption held high-profile public hearings as part of the inquiry that exposed the crimes and corruption of former NSW Labor politicians Eddie Obeid and Ian Macdonald.

“Witnesses of fact — and only witnesses of fact — appearing before the NSW commission, stated publicly by the commissioner to be witnesses of fact only and at the time being serving parliamentarians, were the subject of, in one case, three days of front pages of the Daily Telegraph, and in another case, two days of front pages of the Daily Telegraph, utterly undeserved.

“It’s that problem that we’re trying to engage with: how do you protect the reputations of the entirely innocent witness of fact who is doing no more than assisting a commission in their enquiries?”

Labor sees ‘a risk worth taking’ for politicians

Whichever party follows through would be the first to govern under the watch of a new commission, which could also mean it is the first to see its members exposed.

The Mandarin put this to a politicians’ panel of Dreyfus plus three senators: Amanda Stoker from the government, Larissa Waters of the Greens and independent Tim Storer, who again called on the major parties to sign his integrity charter.

Dreyfus agreed that a new integrity agency would prioritise recent allegations, so “the government that legislates a national integrity commission is quite possibly going to be first cab off the rank, because it’s in government.”

“And I think that that’s a risk, speaking personally, that’s well worth taking,” he added.

“And any government that does so will have to wear it, and indeed you can point to examples of where that has occurred at a state level — that among the first objects of inquiry by a state integrity commission has been ministers or officials in the very government that established it.”

A common example is again from NSW. Nick Greiner, the premier whose government established the ICAC, later resigned under political pressure after its inquiry into the Metherell affair, which former WA premier Geoff Gallop discussed in some detail in a speech at the integrity forum.

“We are greatly advantaged at the Commonwealth level by the fact that there are already anti-corruption commissions in every jurisdiction; we can learn from the mistakes that have been made,” Dreyfus added later.

Checks and balances make all the difference

Public inquiry powers would have legislated checks and balances but exactly how to frame them is the big question for parliament, observed retired Victorian Supreme Court judge Stephen Charles. They must balance the effectiveness of the commission’s investigations with the rights of those who are called before them.

The government’s proposed CIC was unanimously rejected as an ineffective model by independent experts at the forum, who repeated various criticisms, particularly about its very constrained public-sector division.

Charles said it was a “sham” that was “designed to fail” and actually save politicians from exposure. He chaired a panel that advised the Victorian government on the design of its anti-corruption agency, IBAC, but was disappointed with the outcome, and is one of 34 former judges who support the push for a body with broad jurisdiction and strong investigative powers, including public hearings.

When the government claimed to be avoiding “deficiencies that have emerged from the experience of established state anti-corruption commissions like the NSW ICAC” in its CIC proposal, Charles said it was really disparaging the most effective tools they use, such as coercive – and sometimes public – questioning.

The NSW ICAC has been the main target of such criticism but he believes IBAC has the opposite problem: a legislative test for holding public hearings that is too difficult to meet and invites legal challenges. Defending decisions to hold public hearings meant the agency faced revealing in court whatever information its inquiry had turned up.

“The consequences are delay, cost [and] the ability on the part of the suspect to hide, destroy, damage evidence, and it makes it much more difficult to conduct a public hearing,” said the former judge.

Charles said he and his fellow jurists on The Australia Institute’s National Integrity Committee had “always been acutely conscious of the potential damage to reputations” from public hearings.

“We have argued … that the integrity body should first examine, very carefully in private hearings, what the case is, so that by the time there is a decision to hold a public hearing the body knows precisely at whom it is targeted, so that, … when shown to have acted improperly, that person’s reputation may well be damaged, but that is the process of exposing corruption.”

He agreed with Dreyfus that it helps when the commissioners make clear and regular statements during public hearings to identity that some “witnesses of fact” are not the subject of any allegations.

The alternative AG favours “some kind of legislative direction” requiring such announcements at regular intervals to “really ram it home”  that just being called as a witness is not, in itself, a mark of suspicion.

State commissioners have done this at times, “but not enough” in his view.

Labor accepts public inquiries are an essential element of a genuine anti-corruption commission, but Dreyfus thinks they should be occasional – so there are “many times more private hearings before you actually get to a public hearing” – and Charles said the agency would have to do lots of “careful investigation” before opening up its doors.

“You can’t just go into a public hearing of this kind and just feel around and hope that you’re not going to do any damage,” said the retired judge.

Weakness of CIC

Participants in the integrity forum were repeatedly told the agency preferred by the Coalition would struggle to detect corruption in parliament and the public sector at all, due to a very narrow jurisdiction and strong limitations on its powers.

Major concerns include a very high threshold for the CIC to investigate – suspicion of a specific crime – as well as the inability to run own-motion investigations, follow up general complaints and tip-offs, make public findings of corruption or hold public hearings. Its public-sector division looks more like a specialist policing agency than a permanent commission of inquiry.

“Clearly corruption is much more than a criminal offence, and any attempt to confine a national integrity commission to simply dealing with criminal offences is clearly inappropriate and inadequate,” said constitutional law professor Anne Twomey.

“I mean if the issue simply having an organisation to investigate criminal offences, well, don’t we already have one? The police? What is the point of a national integrity commission if that is all it does?”

Before getting fired up about transparency and arguing she had been barred from seeing archival documents for “utterly ludicrous” reasons, Twomey noted the Coalition’s CIC would only act on complaints from a select few.

“Effectively, really it’s only agency heads who can do that, and of course there aren’t agency heads for members of parliament so that nicely solves that dilemma.

“So if you’re a member of parliament, effectively the only way you can get caught is if your name pops up in some other investigation that’s happening in relation to another agency, or if there’s an investigation by the [Australian Federal Police] or the Independent Parliamentary Expenses Authority.

“Again, that’s really quite unacceptable. If there is no mechanism for anyone to complain about corruption by politicians, then the system will come into disrepute.”

Charles reiterated a popular illustration: if the NSW ICAC was as restricted as the CIC, it would never have uncovered the dodgy deals made by Obeid and Macdonald, because that investigation began with a vague tip-off.

The former judge also noted that when federal parliament voted in 2012 to give its members the power to investigate judicial misbehaviour, the legislation required this to happen in public. “How about the hypocrisy?”

Consensus needed

According to the government, it’s all about protecting individual rights and reputations. Attorney-General Christian Porter argued this position vehemently, and somewhat hyperbolically, in response to the integrity commission proposed last year by independent MPs. Advised by Griffith University professor AJ Brown, they put forward a comprehensive model, again more broadly in line with Labor’s policy.

Brown accused Porter of inaccurate scaremongering in a strong defence of that proposal and suggested the AG had misread the bill. But he is also very conscious of the genuine concerns that anti-corruption commissions can have too much power, leading them to unacceptably offend individual rights and unfairly besmirch reputations.

“I think we need to acknowledge the track record of both state anti-corruption bodies, and federal law enforcement bodies, when it comes to using their very, very, very strong powers, is not squeaky clean,” he said at the forum.

“I think personally there are errors made in the NSW ICAC’s policies as to when and how it would use public hearings and … the lack of a consensus as to when and how that should occur is partly why we’re having a very vigorous debate about when and where these powers should be deployed now.”

The fragile bipartisan support for a new integrity commission has taken years to emerge at Commonwealth level, and Brown agreed with all the speakers arguing the proposed CIC would be ineffective.

As a board member of Transparency International Australia, he advocates a much wider set of integrity reforms covering political donations, transparency, and rules to put the brakes on the revolving doors between government and industry.

And as lead author of the National Integrity Systems Assessment, a joint project between academics, civil society groups and existing integrity agencies, the professor estimates an appropriate and effective federal anti-corruption commission needs about $100m per year – almost four times what is proposed in the Coalition’s early budget.

Stephen Charles said some of “the people who run IBAC” – on a $40m annual budget – had also estimated it would need at least that much.

Brown, however, was more concerned about building and maintaining bipartisan support.

He said a lack of consensus could lead to politicians trying to alter the situation in future, which had happened in Queensland more than once. On the flipside, Charles warned against thinking any integrity commission would be better than none, and hoping later reforms could improve it.

There’s “Buckley’s chance” of that, said the former judge, based on the Victorian experience.

“We’ve been trying to improve the IBAC legislation for years in Melbourne. It was set up by a Liberal government, and very badly. The Labor government has not been at all enthusiastic about improving the legislation and recently, they voted in further requirements in section 117 to make it even more difficult to conduct a public inquiry.

“Politicians do not like being investigated, full stop.”

“We don’t have a perfect model.”

Brown said it was important to recognise the “legitimate policy questions about what is the right type of jurisdiction, and what are the right type of powers” for such an agency, and the genuine debate about “whether it is just there to expose corruption, or whether there is a public expectation that sanctions will follow, that remedies will follow, that actions will follow.”

He said the head of the Qld Crime and Corruption Commission, Alan MacSporran, believed exposing wrongdoing was “the primary and only duty of an anti-corruption body” and it should have a very wide jurisdiction to investigate all kinds of misbehaviour, not just potential crimes.

“Then, we’ve got to have tailored responses, or what are called graduated responses,” said Brown. “Some of them will be criminal, some of them will be disciplinary, some of them should be responses that occur within the parliament through a parliamentary code of conduct and a parliamentary standards commissioner.

“We’ve actually got to realise that people do expect consequences, not just exposure, and if all people get is exposure with a big lag before there’s any consequences or no consequences at all, then that doesn’t contribute to public trust.”

He argued there was “no one-size-fits-all” model to take off the shelf. “And the problem is… more often than not, the state regimes haven’t struck that balance right … or only with difficulty.”

There is widespread agreement that checks and balances like public-interest tests are required for an integrity commission to hold public hearings, conduct surveillance or intercept communications, but it’s a fine line and there is no obvious best-practice.

“We don’t have a perfect model,” said Brown, who runs a public sector integrity program at Griffith University.

“We don’t have anything near a perfect model. We’ve got something that has usually worked, most of the time, but in my view hasn’t actually worked enough of the time.

“This is why this is a legitimate question. It doesn’t mean that there shouldn’t be public hearing powers, and that they shouldn’t extend across 100% of the jurisdiction of a federal anti-corruption body, but it actually means that we’ve got some work to do if we want to have powers that are supported by a political consensus, right across the spectrum.”

Natasha Molt spoke for the Law Council of Australia: it favours the Qld CCC’s approach to public hearings, “whereby there will be a presumption against public hearings unless the commissioner considers that an open hearing would render the investigation more effective and would not be unfair to the person or contrary to the public interest.”

In all hearings, public and private, procedural fairness requires the opportunity to defend oneself. One of the Law Council’s views is that a person subject to adverse findings should always get to hear them before the public, along with the related evidence, and have the opportunity to respond.

Do we need more consultation?

Senator Stoker was unable to expand much on the Coalition’s existing position, but made a virtue of the government having put its cards on the table, arguing the opposition had done “the bare minimum to score the political point and move on” by simply committing to seven principles in January, 2018.

Labor’s position is that only the government can run the consultation required to build political consensus and get the model just right, in particular through discussions with existing integrity agencies.

But Dreyfus was told there were already reams of expert opinion “groaning on library shelves every day” by another leading academic expert on these matters, Monash University associate professor Colleen Lewis, whose present role combines criminology and parliamentary studies.

Lewis said all the issues had been discussed “ad nauseum” over the years, in each state and territory.

Dreyfus told her he mostly wanted to co-ordinate with existing agencies and “learn from the mistakes that have been made” in other jurisdictions.

Lewis believes the proposed CIC model and the Australian Commission for Law Enforcement Integrity, on which it builds, are both ineffective and poorly designed. She and Twomey also rejected the concern that something more like ICAC might be used as a political weapon.

“So what you’re actually, in a way, asking the Australian people to accept, is that MPs want to implement legislation to protect themselves from themselves,” Lewis said. “And I don’t think that that argument is something that, with the trust level as it is at the moment, will be appreciated.”

Twomey said this fear was understandable but not particularly reasonable. Regardless of their motivations, she thinks politicians are often highly effective at scrutinising their opponents and their allegations might still be true. And public hearings can work both ways, she added: “Not only do they show that people have behaved inappropriately and wrongly, they also show that people did behave appropriately, that allegations are wrong.”

Former Sydney Water chief Kerry Schott, for example, was praised for her integrity after giving evidence to the ICAC.

“Another way of undermining a body’s function is to require it to act in secret,” said Twomey.

“Now astoundingly, the claim is made by the Commonwealth in relation to the CIC … that it shouldn’t be holding public hearings because it would turn it into a ‘star chamber’.”

As a historian, she had a bone to pick with this metaphor.

“So the British Star Chamber, interestingly, was set up to hear cases against those who were so powerful that an ordinary court would be reluctant to convict, but why did it become despotic?

“Because its proceedings were heard in secret! If you want to create a ‘star chamber’ then you do precisely what the Commonwealth is proposing, and that is to hold all of your hearings in secret.”

Tipping the balance towards private hearings only “undermines public trust in what is happening” in her view.

Meanwhile, the support for a strong and comprehensive integrity commission looks very strong and spread fairly evenly across the political spectrum, if you accept the results of The Australia Institute’s recent poll using a nationally representative sample of 1,536.

One Nation voters were most supportive, with those intending to vote for the Coalition slightly ahead of Labor and Greens supporters marginally less enthusiastic about a corruption watchdog with strong powers.

There was strong support for all of eight separate statutory powers an anti-corruption commission might have. The two least popular were the power to compel witnesses to give evidence, and to hold public hearings, but even these respectively garnered 78% and 76% support overall.

One Nation supporters were the keenest to see every proposed power. Coalition voters were least approving of public hearings — 75% supported them — but they were more likely than most to support both the ability to compel testimony (81%) and to make public findings of corruption (85%).

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