Integrity commissioner's departing serve continues to reverberate

By Stephen Easton

August 18, 2015

The Tasmanian Greens are trying to highlight the government’s hostile attitude to the state’s integrity commission by forcing it to vote against making abuse of public office a crime, as it is everywhere else in Australia.

State parliament resumes today and the Greens will introduce a bill to criminalise “misuse of public office” — covering all government employees. As legislation, it is doomed by the government’s absolute majority in the lower house, regardless of Labor’s position, but should serve to keep alive the extraordinary comments made by respected former integrity commissioner Murray Kellam QC.

Murray Kellam
Murray Kellam

Kellam, whose term officially ended on Sunday, says “powerful interests” in the state’s government and public service have worked against the commission from day one. “Those interests have sought to limit the Commission’s work by reducing its budget, calling for removal of its investigative functions, not remedying its deficient legislation, and by not supporting its work,” he wrote in a public statement.

The latter complaints seem to refer to the former Labor government, whose disinterest in empowering the commission to fulfil its role gave way to distinct hostility from the current Liberal administration once it came to power, and promptly stripped 20% from the TIC’s budget.

At federal level, the case for an anti-corruption commission to be established has also been left to the Greens, as the two major parties and many senior public servants are similarly disinterested in the idea.

In his public eruption after five apparently frustrating years, Kellam took aim at the government’s recent decision to cut his budget by 20%, which he says was based on a “mistaken understanding about complaint numbers — both their number and significance” and poorly justified by illogical argument:

“The error was brought to [the current government’s] attention repeatedly but it would not take account of the clear evidence in making its decision …

Recently the attorney-general has said that the Commission has enough money to conduct the limited number of investigations it undertakes per year. The fallacy of this argument is obvious — the Commission is limited in the number of investigations it undertakes by its available funding.”

Kellam argues the work done by the Tasmanian Integrity Commission could have secured criminal convictions if either the former Labor government or its successor had managed to get the simple amendment to the criminal code over the line.

“The commission has laboured under a manifestly inadequate legislative framework since the day it opened its doors,” writes Kellam, who has previously acted as a Victorian Supreme Court judge and head of the Victorian Civil and Administrative Tribunal.

He continues:

“That is not surprising as the Act establishing it was passed through the Parliament in a couple of weeks. Furthermore, my experience in other jurisdictions is that the legislation establishing similar new bodies usually requires early amendment for a variety of reasons once practical operations commence.

However, since its commencement the Commission has tried time after time to convince governments (of either persuasion) to remedy its legislation, to no avail.”

Kellam’s frustration with the way parliamentary processes have been used and abused by both sides of politics is clear. He goes on to point out the TIC recommended a range of early “technical amendments” to the Joint Standing Committee on Integrity back in November, 2013. Most received in-principle support from the committee but, he notes:

“The then Government took no action, deciding to wait until the Committee reported on its Three Year Review of the Commission. The current Government also decided to await the Committee’s report.

Unfortunately that Report was not delivered until June 2015 and the members of the new Committee decided to reconsider all of the amendments considered (including those supported) by the previous Committee and made a range of different decisions. Some of those decisions were to refer the amendments back to the Government to consider. It appears that there is now no time for any amendments before the independent Five Year Review commences in January 2016.”

The integrity commission’s CEO, Diane Merryfull, reminded the committee almost a year ago that creating a “misuse of public office” offence had been a clear priority ever since the TIC was established, on the recommendation of a report which also argued for the simple criminal code amendment.

Kellam finds it “disappointing” that the Three Year Review took so long and “regrettable” the joint committee has also failed to move ahead with a parliamentary code of conduct, despite his agency preparing a draft code over four years ago:

“The community would be rightly entitled to question the commitment of its elected representatives to ethical conduct when those representatives apparently see no urgency or value in holding themselves accountable to a code of conduct.

If the elected representatives of the community will not adopt a code of conduct then what message does that send to the Tasmanian public sector (most of whom are actually bound by quite strict codes) about the importance that should be placed on high standards of ethical behaviour?”

The highly respected jurist also found space in his parting shot at Tasmania’s politicians to demolish the fallacious claim — also made by federal politicians and bureaucrats whenever a federal ICAC is mentioned — that corruption happens to other governments.

While the Tasmanian public still have a lot of faith in their state servants — 85% told the TIC in a survey they thought most were honest — they’re not stupid either; 88% agreed Tasmanian public servants were no less likely to behave unethically than other Australian bureaucrats. Kellam adds:

“It is simply naive to assume that Bass Strait forms some sort of barrier to corruption and it is naive of the Government to, as it has, assert that other bodies such as the Tasmanian Police have the capacity to detect and investigate such public sector corruption.”

He writes that in the future, he fears history will record that Tasmania’s political major political parties tacitly “gave the green light” to corruption.

Greg Melick
Greg Melick

Kellam’s successor as integrity commissioner is Greg Melick, a Hobart-based lawyer and winemaker who retired from the Defence Force in 2007 after 48 years service, at the rank of Major-General.

Melick was a prosecutor in Tasmania in the 1980s, and has been a statutory member of the National Crime Authority, and New South Wales Casino Control Authority, as well as a special investigator for the Australian Cricket Board.

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