Federal ICAC supporters see hope in Senate inquiry do-over

By Stephen Easton

March 14, 2017

Supporters of a proposed federal ICAC are determined not to let the debate slip away as a new Senate select committee re-examines the idea.

The chair of the committee, Labor senator Jacinta Collins, is scheduled to speak at Transparency International Australia’s inaugural Integrity Summit this Thursday and Friday, co-hosted by Griffith University’s Centre for Governance and Public Policy, and the organisers hope the discussions there will feed into the inquiry.

TIA chair Anthony Whealy, whose former roles include New South Wales Supreme Court justice, appeal judge and assistant commissioner of the NSW ICAC, is one jurist who doesn’t buy the arguments most politicians and senior public servants have deployed against the idea.

“It’s been very, very unpopular with them over the years and it’s very hard to see why, because it’s for the own protection,” he told The Mandarin.

“We see issues about entitlements time and time again … there’s constantly scandals erupting and you would think that the politicians themselves would see the wisdom in having a body that supervises this, and from whom they can get recommendations and advice if they’re in any doubt.

“So, to me, it’s a complete mystery as to why they’ve resisted it for so long.”

Labor’s Penny Wong most recently pushed for the fresh inquiry to go ahead. An earlier inquiry chaired by Clive Palmer’s erstwhile offsider Dio Wang was cut short by the last election, but not before it put some of the key arguments on the public record including the current administration’s view on the matter.

“I couldn’t believe what I was hearing when the Attorney-General’s Department announced to the committee that we didn’t need a federal integrity body because there was no evidence that any poor behaviour was happening,” said Whealy.

The new committee has two members from each of the major parties and reflects the higher number of cross-benchers in the current Senate, with the Nick Xenophon Team’s Skye Kakoschke-Moore as deputy chair, as well as Derryn Hinch.

“Transparency International Australia thinks there is now a very strong push that will come at least from the Labor Party, and we hope that the Liberal Party will see the wisdom of a federal ICAC, because I don’t think any longer it’s a question of should we have one,” said Whealy. “It really is what form should it take, what should its powers be, what should its responsibilities be and so on.”

Of course, the TIA chair is very familiar with oft-repeated fears that such bodies have too much coercive questioning power, that corruption allegations aired in their public hearings can represent an unfair kind of institutional defamation, and that witnesses are not given a fair chance to represent themselves.

In South Australia, for example, these arguments led to an ICAC that generally can’t make its investigations public until a person has been charged with a crime. That is “too closed” and has proved to be “unsatisfactory” to most of the SA public, in Whealy’s opinion.

“I think rule one is that if you’re examining corruption, then you’ve got to do it in a public way,” he said.

“It’s true you’ve got to protect people’s reputation where it would be unfair to besmirch them with an allegation that’s going to be unsubstantiated, but you have to make a value judgement, as in NSW.”

Anthony Whealy QC

The former ICAC assistant commissioner explained the watchdog’s investigators always put a lot of work into an investigation before it is decided to hold a public inquiry, and he believes a public-interest test like that in the NSW legislation is sufficient.

“Unless you do have public hearings, you’re really not going to achieve anything because once you hide away [inquiries into] corruption from the public gaze, you’re really not achieving the outcome that you want, which is to shine a light into dark corners,” he said.

“And sure, there’ll be some collateral damage but I think it’s worth it, if in the long run we do expose serious corruption, and in NSW, that’s been the case.”

It’s not that Whealy takes the potential for reputational damage to individuals lightly; he says it is an extremely important factor for any ICAC-style body to weigh up against the value of having very serious issues of public sector corruption exposed and examined in full view of the community.

But, in his view, it is normally very clear to the investigators which cases are minor issues and which must be dealt with as transparently as possible, such as the Victorian Independent Broad-based Anti-corruption Commission’s recent Ultranet inquiry.

Other critics attack anti-corruption commissions as being akin to the infamous star chambers and suggest much of their role should be left to law enforcement agencies and the courts.

Disgraced former NSW upper house member Eddie Obeid attacked the legitimacy of ICAC when it looked into his activities and, bizarrely, his new lawyers are now arguing it wasn’t the NSW Supreme Court’s place to convict him for official misconduct as a parliamentarian either.

“People like Mr Obeid would say: ‘Oh well they should never have had a public inquiry into my conduct.’ But the public would laugh at that suggestion, and rightly so,” said Whealy.

Bruce Lander, the SA Independent Commissioner Against Corruption, would like to be able to make more of his office’s work public — not just when it results in criminal charges. He thinks it would be valuable if he could deliver public reports to parliament on important matters arising from his investigations, access cabinet documents and hold public hearings in some cases.

He has also expressed support for allowing public sector whistleblowers to go to the media under certain circumstances, as they can under public interest disclosure (PID) laws in other jurisdictions such as NSW, Queensland, the Commonwealth and Western Australia.

“South Australia is out of step there,” Whealy said. “It’s a very valuable protection, and we should have it right around Australia, I’ve not the slightest doubt about that.”

Transparency International’s index that gauges perceptions of corruption shows Australians are increasingly worried about government integrity, and one of their biggest concerns is back-room deals between big business and government.

“For most Australians this is a real worry and I think it’s something that once again the parliamentarians have to face up to, and I think to some extent they are now — they’re talking about banning foreign donations and so on,” said Whealy.

“But we’ve got to have real-time disclosure of donations, as Queensland has now introduced.”

This kind of influence-peddling is what Flinders University professor Adam Graycar, who will be chairing a panel at the conference, has called “rich-country corruption”, to distinguish it from the kind of widespread graft that is seen in less developed countries.

Graycar also has a different view on the federal ICAC issue; he believes the Commonwealth needs a new integrity council to co-ordinate and overlook the efforts of existing agencies, but without strong teeth of its own.

“I think there’s room for both,” said Whealy. “I think we could have a kind of parliamentary commission that looks at behaviour generally and reports on things and gives recommendations and advice and then we could have an actual corruption investigation body as well.”

Real-time disclosure of political donations will be part of a discussion at the conference that will cover the Commonwealth’s recent Open Government pledges, such as a beneficial ownership register that aims to expose complex, opaque financial arrangements like those exposed by the Panama Papers.

Whealy says TIA’s first ever conference as well as its appointment of a paid chief executive officer are part of efforts to make the international body’s Australian arm a more professional outfit with a higher public profile.

Corporate accountability specialist Serena Lilywhite has just taken up the post, which was only created last year, and the integrity summit will be her first public outing. TIA’s board wants the summit to be “a major opportunity for business, government and civil society leaders to meet this new, powerful voice for accountability and social responsibility”.

“I think it’s been an important but subdued body in Australia because it’s been essentially pro bono completely and run on semi-amateur lines until recently. About two years ago, we decided we would need to stand on our own two feet financially, to have employees and to have a CEO,” said Whealy.

“It’s not so much that we really want to blow our own trumpet, but I just think we want to get onto a footing where we really can make a practical difference working with government and business.”

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