Anti-corruption chiefs: Public hearings and independent funding indispensable to integrity

By Matthew Elmas

Thursday November 5, 2020

NSW ICAC Chief Commissioner Peter Hall QC.

Exposing corrupt conduct through public hearings is indispensable to preventing a ‘corrosive and destructive’ decline in public trust, NSW’s Independent Commission Against Corruption (ICAC) chief commissioner Peter Hall says.

Existing influence and control over ICAC funding by NSW’s executive government is also ‘entirely inconsistent’ with the commission’s statutory independence, Hall told a Governance Institute of Australia forum in Adelaide.

“Any influence, any control over the ICAC by the executive is entirely inconsistent with, its contradictory to, the commission’s statutory independence,” the former NSW Supreme Court judge said.

Speaking on a panel of heavy-hitting integrity and anti-corruption chiefs on Thursday, Hall delivered a staunch defense of NSW ICAC in upholding public trust in government, particularly its at-times explosive public hearing powers.

He argued debate over the importance of public hearings was ‘virtually settled’ in 2015, when former High Court chief justice Murray Gleeson QC found they were “indispensable to the proper functioning” of ICAC in an independent panel review of the commission.

“The commission’s remit is not one of simply detecting corrupt conduct,” Hall said.

“It was also established with a statutory function to expose corrupt conduct.”

The comments came amid a heated public discussion about a proposed Commonwealth Integrity Commission (CIC), which under existing government plans would not be able to hold public hearings into politicians or public servants, spurring stringent opposition from accountability advocates.

Hall: public hearings necessary for public trust

While noting he did not want to be ‘drawn into the debate’ about the proposed CIC model, Hall nevertheless underscored the importance of public hearings to maintaining public trust in anti-corruption proceedings.

“Public power does not belong to public officials,” Hall said.

“Public power must be exercised in and for the public interest, and not for any extraneous or improper purpose.

“When corrupt conduct is both detected and exposed by our commission the public trust is publicly being upheld; by its findings, the public trust principle is proclaimed to the community.”

But if this trust is neglected or lost in public consciousness, then “confidence in government and in public administration proportionately declines”, Hall said.

“That in turn has, as we know, corrosive and destructive effects amongst the citizenry, it also leads to a drop in ethical standards, and that of course leads to misconduct in public office and corrupt conduct.”

At the federal level, accountability think-tank the Centre for Public Integrity is publicly opposing the Morrison government’s proposed CIC bill, arguing an inability to hold public hearings across the majority of its jurisdiction will jeopardize trust in an eventual corruption watchdog.

Attorney General Christian Porter, meanwhile, has argued corruption allegations should be aired through the court, having expressed concern public testimony can exempt witnesses from criminal prosecution.

“Best of both worlds”: Queensland walks and chews gum on corruption and systemic reform

Alan MacSporran QC, chair of Queensland Crime and Corruption Commission (CCC), told the forum public hearings were integral to identifying larger problems arising from corruption investigations and ultimately fixing “broken systems”.

In Queensland, the CCC investigates corruption allegations in private, but will undertake public hearings to present a case for addressing systemic integrity problems in the state’s public sector.

“Our view is there’s an expectation in the public as well as ourselves that if there’s truly serious coorrupt conduct identified that should be charged as such and it should go through the courts in the ordinary way,” MacSporran said.

“… In other words, we use public hearings because they have the greatest impact on bringing about change that is necessary to prevent and cure systemic corruption and maladministration.”

MacSporran cited the example of the 2017 operation Belcarra hearings, where the CCC undertook public hearings into structural failings with local government elections, while simultaneously conducting private hearings into specific corruption allegations relating to Ipswich council.

“That worked as it should, but we kept that private because they resulted in charges and those people went through the courts,” he said.

“But the more systemic, wider cultural issues were also exposed and recommendations made to fix it, which the government, to their credit, took up.”

MacSporran said the CCC model, which was established soon after NSW ICAC in the late 1980s, was the “best of both worlds”.

MacSporran: watchdogs must “roam-at-large”

In a wide-ranging speech covering an array of prescient risks to anti-corruption watchdogs across the country, MacSporran —perhaps coincidentally— drew another implicit contrast between Queensland’s CCC and the proposed Commonwealth corruption watchdog, saying an ability to take public complaints was a “critically important” part of its jurisdiction.

“The jurisdiction we have applies to them [politicians] and it enables us on a very broad basis to examine conduct that comes to us by way of complaint,” he said.

“We can take complaints from anyone, it doesn’t have to be referral from a minister, or a government head or some designated body, anyone can come to us and make a complaint and we’re required to assess it and then if necessary investigate the conduct.”

Alan MacSporran with Queensland Premier Annastacia Palaszczuk.

This mandate to “roam-at-large” under the constraints of parliamentary oversight is a “foundational plank in giving members of the public confidence”, the former Commonwealth prosecutor said.

“[It] enables us, in a practical sense, to look at all sorts of aberrant conduct, as opposed to a very narrow circumscribed jurisdiction which is virtually useless, frankly,” he said.

“You may as well not have a jurisdiction if its constrained in that way.”

Anti-corruption chiefs underscore need for arms-length funding arrangements

Both Hall and MacSporran spoke about the importance of independent funding for anti-corruption bodies, amid ongoing debate over existing arrangements in both NSW and Queensland.

MacSporran said executive government oversight was a clear conflict of interest, echoing an argument the CCC has already put to a parliamentary review of its funding arrangements, due to report next June.

“There’s a conflict between politicians being the deciders of your funding when they might have an interest in the outcomes,” he said.

“… There should be an independent body that receives submissions from us, the agency, to put forward a business case for funding and the amount and the reasons behind it.

“That independent body then assesses those submissions and makes its recommendations to the parliament and the parliament decides what the figure should ultimately be.”

Similar discussions are taking place in NSW, where the proximity of executive government to funding arrangements was highlighted after NSW Premier Gladys Berejiklian’s recent and bruising appearance before ICAC’s public hearings into Daryl Maguire.

An October report from NSW’s Auditor-General, which looked into funding arrangements for four integrity agencies, found safeguards against threats to ICAC’s independence in funding arrangements were ‘not sufficient’, arguing members of parliament are not aware of rejected or partially granted funding proposals.

Hall said existing arrangements were inconsistent with ICAC’s statutory mandate.

“ICAC is ultimately responsible to the NSW parliament, and to parliament alone,” he said.

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