Should it be illegal to reveal allegations of public corruption, in order to protect reputations and discourage vexatious complaints, or would that unfairly restrict free speech and undermine the power of open justice?
The Queensland Crime and Corruption Commission hopes a two-day public forum in Brisbane this Thursday and Friday will help answer the question. The CCC set out the key issues in a discussion paper in June, which received over 50 submissions.
It’s the biggest bone of contention for all corruption watchdogs, from New South Wales, where the Independent Commission Against Corruption is regularly accused of unfairly damaging reputations, to South Australia, where a different ICAC is often criticised for being too opaque.
On the side of disclosure are freedom of speech, transparent government and open justice; public confidence in government is best served if everyone can observe serious corruption being punished. But on the other side is the potential for reputational damage to the accused and any subsequent trial in court to be prejudiced against them.
The CCC also notes the aim of making a complaint could simply be to add a veneer of legitimacy to a malicious accusation. It points out communications technology now means “allegations are instantaneously and widely transmitted, and stay on the public record in perpetuity” and in some cases, publicity can send the hares running:
“Making the allegation public gives individuals involved in the matter the opportunity to destroy information that might support the allegation, fabricate a false explanation or justification, or interfere with witnesses.”
The main concern that comes through in submissions is local and state politicians reporting their opponents to the watchdog and tipping off the media, or simply announcing they are going to the CCC. The Local Government Association of Queensland says this is a longstanding issue at council level:
“The reporting (and subsequent publication by complainants) of allegations of corrupt conduct against Council staff and, in particular, sitting councillors increases substantially in the 6 to 12 month period leading up to local government elections.
“In the vast majority of cases, the allegations have absolutely no substance or are not about corrupt conduct. Notwithstanding, the complainant ‘goes public’ with his/her allegations, causing reputational damage for Councils and individual councillors, prior to the allegations being the subject of any preliminary investigation, let alone determined.”
The view from the ivory towers
Unfortunately, there’s no simple answer to the question in the discussion paper’s title: is it in the public interest to make allegations of corruption public? The clearest complication is that the public interest may be served by disclosure of corruption allegations in some cases, and not in others.
Professor Charles Sampford, director of the Institute for Ethics, Governance and Law at Griffith University, says “the question is who should decide that the matter is in the public interest” and a “mere assertion” alone is not enough. He questions the motivations of people who make corruption complaints and then publicise them — likely tipping off the supposed crooks.
Sampford argues the CCC should decide in the first place whether to hold a public hearing or appeal to the public for more leads. He believes “the bi-partisan requirements for appointment of commissioners provide a good first line of defence against the abuse of these powers” and notes there are also avenues to complain about the CCC itself.
Public policy and law professor AJ Brown, also of Griffith University, points out public discussion of a matter before the CCC might be justified, desirable or inevitable, depending on the circumstances.
Brown points out a proviso like without reasonable excuse would need to be included with any new “blanket” criminal offence. He says this would make prosecutions more difficult, and hence less likely, substantially weakening the case for creating such an offence to begin with.
Instead, Brown suggests three slightly different options could protect the rights and reputations of people subject to allegations and, secondly, help the CCC “control when and how the public discussion of allegations occurs, in order to help minimise unhelpful discussion and maximise helpful discussion” depending on the case.
One option would provide victims of trial by media clear grounds on which to sue their accusers in situations where normal defamation law would not apply, and allow the CCC to take such action on their behalves.
The other two options both involve giving the commission clear power to decide which matters require confidentiality, and enforce it. Brown suggests whole classes of complaint like “any allegation made against any political candidate within three months of an election” could be subject to stricter confidentiality than others.
Curtin University journalism professor Joseph Fernandez sets out a passionate and comprehensive defence of transparency and the principle of open justice. He argues that any new restrictions on reporting must be based on genuine evidence of the need for them, with precise reference to actual problems that will be addressed.
While he accepts that individual rights must be carefully protected from the extraordinary powers of bodies like the CCC, Fernandez comments that open justice serves a similar broad concern, albeit in a different way, to the proposed confidentiality. He doesn’t think an anti-corruption commission should have to worry too much about reputational damage:
“The Commission’s role is to combat corruption. Such a role should not be unduly concerned with damage to personal reputations. It is in the normal scheme of things that a person who is the subject of investigation would inevitably attract unfavourable attention or suffer reputational damage.”
As other supporters of press freedom and open public inquiries into very serious corruption have pointed out, he notes there are already protections and forms of redress like defamation laws, which set a high bar for news reporters in Australia. Fernandez argues freedom of speech is only weakly protected by the Constitution and should be respected by governments, especially since so many laws passed in recent years — especially at federal level — obscure their actions from media scrutiny.
The view from the public sector
The Department of Premier and Cabinet sent in a short submission on behalf of the whole state public service, which says little apart from commending the CCC for trying to find a “workable solution” to the question.
On balance, it seems departmental bosses would be happy with new measures that “minimise vexatious publication of complaints to obtain personal or political advantage, and aim to ensure any investigation of allegations of corrupt conduct are not compromised by any publication of the allegations” — and they don’t appear worried about a lack of transparency around the CCC.
The Queensland Police Service simply believes the current arrangements are fine the way they are.
Parliamentary crime and corruption commissioner Paul Favell supports criminalising disclosure of CCC complaints, with protections as recommended by the 2012 Callinan and Aroney Review of the integrity framework. He believes this proposal could be crafted into legislation that “would not unduly infringe upon the ideal of open, transparent and accountable government”.
And in case anyone picks up another Callinan and Aroney recommendation — to alter the Right to Information Act to stop clever journalists using RTI requests to deduce a person is subject to a CCC complaint — the Queensland Office of the Information Commissioner argues this would be an unnecessary and unwise backwards step in transparency for the state.
The Parliamentary Crime and Corruption Committee suggests any legislative change won’t be very effective if the Local Government Act and Public Service Act are not similarly amended:
“… to ensure that a similar obligation is imposed upon complainants who refer matters to the responsible authorities under those Acts, which are then referred by the relevant CEOs to the Commission for assessment.
“Unless this is done, the potential for abuse of the complaints system will remain.”
Australia’s original ICAC also threw its ten cents into the pile, detailing how the NSW legislative framework balances the issues and the circumstances in which it can proceed to a public inquiry.
There is no restriction on complainants going public with their allegations in NSW — except the threat of defamation lawsuits — and nor does ICAC see a need for one:
“While complainants may publicise the fact that they have made a complaint to the ICAC, it has not been the ICAC’s experience that any such publication has adversely affected its investigations.
“The limited cases where people do publish the fact they have made a complaint to the ICAC usually involve matters that the ICAC has decided not to investigate. The ICAC’s experience is that the more serious and substantial the complaint, the less likely it is that the complainant will risk prejudicing any investigation by publishing the complaint.
“In many cases complainants may be concerned that they will suffer reprisals if it becomes known they have made complaints. This concern acts as a natural constraint against disclosure.”
According to ICAC, NSW has not seen corruption complaints increase in the lead-up to elections as the CCC has recently. In the past, the NSW commission dealt with apparently politically motivated and often misleading claims “by making a timely public statement prior to the election” to clarify the truth of each matter.
Eventually, the commission wrote to the parties, presiding officers and parliamentarians ahead of the 1999 poll, asking that complaints be kept confidential:
“The letters advised that if unfair use was made of the complaint referral process the ICAC might depart from its usual practice of not publicly commenting on the receipt of a complaint.”
For the 2004 local government elections, a simple brochure “urging local government candidates to act fairly during the election campaign and not to misuse the ICAC for political purposes” did the trick:
“It does not appear from ICAC records that there has been a need to repeat these exercises for subsequent state or local government elections.”