James Campbell: Proposed federal ICAC should have civil libertarians up in arms

Those worried about ‘threats to our freedoms’ supposedly posed by anti-terror laws have been remarkably silent about the powers granted to a National Anti-Corruption Commission.

Imagine the carry on there’d be if Peter Dutton was planning on letting members of the AAT sign warrants to tap Labor MPs’ phones. The Administrative Appeals Tribunal – to give its full name – a semi-judicial body that reviews government decisions, has in recent years attracted the ire of the Labor Party for the way the previous government used it as a taxpayer-funded Valhalla for loyal servants of the Liberal Party.

The idea that one of these sorts of political appointments – Labor or Liberal – should have the sort of powers envisaged in National Anti-Corruption Commission legislation you assume would have had the civil libertarians up in arms.

But for some reason the kind of people who were frightfully worried about the threats to our freedoms when parliament was passing laws intended to keep us safe from homegrown fans of ISIS have – so far anyway – been remarkably silent about the powers being granted so casually to the NACC. The scariest thing in the legislation, and in my view there are plenty of things in this bill to be scared about, is the way corruption is defined – or rather not defined.

To be fair, the bill lists all the conventional forms of corruption that you or I would understand by term, but it also includes the following: “Any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purpose of corruption of any other kind.”

What does that mean? Well, according to the accompanying explanatory memorandum “this limb of the definition would provide the Commissioner with the flexibility to address emerging areas of corruption that may not currently be foreseen, and may not fall within any of the other more specific limbs of the definition”.

Humpty Dumpty – aka Australia’s future anti-corruption commissioner.

In other words, Australia’s anti- corruption commissioner will be able to use language in the same way Humpty Dumpty did in Lewis Carroll’s Through the Looking Glass, in which he told Alice: “When I use a word … it means just what I choose it to mean – neither more nor less.” This would be funny if it wasn’t so serious.

That we should be rushing this thing into law within three months of anyone first sighting the legislation would also be funny if the powers being granted weren’t so sinister.

But bizarrely, from what I have read the only criticisms of Labor’s legislation from the progressive side of politics and their media camp followers seem to be worries the bill doesn’t go far enough.

The main “debate” in the weeks since the Attorney-General did his big reveal has been concern that the threshold for public hearings is far too low.

Now I understand why journalists love public hearings – they offer the rare opportunity for a free-fire zone in which reputations can be destroyed without fear of defamation.

But anyone who has been watching the Victorian and NSW anti-corruption bodies closely would understand the danger here.

Former NSW Premier Gladys Berejiklian resigned over evidence given to an ICAC inquiry. Picture: John Grainger

They would also know that guarding against one form of abuse only lays the body open to committing another.

The authors of the Victoria’s IBAC legislation were mindful they did not want to replicate the public circus that is ICAC, which has destroyed so many people’s lives with very little to show in return for that misery.

To that end they set a high bar for public hearings. Problem solved? No, not really. It turns out giving the Commissioner a great deal of discretion over whether or not to hold hearings in public creates a different set of dangers.

In 2020 Victorians were treated to the spectacle of days of public inquiry into shenanigans in the Victorian ALP, nothing illegal – no one ended up even being charged – but embarrassing and as it turned out career-ending for all the MPs involved.

But as we later discovered when it came to public hearings, not all MPs were equal. Despite presiding over the government that allowed these things to go on, Daniel Andrews was given the courtesy of being examined in private.

Victorian Premier Daniel Andrews was given the courtesy of being examined by the IBAC in private. Picture: Josie Hayden

Not only that, IBAC decided to concentrate on the activities of one small section of the Right faction of the ALP. Witnesses who tried to explain that branch-stacking and the use of taxpayer-funded staff for party activities were practices well known across the spectrum of Victorian Labor, and who tried to offer examples of this conduct, were basically told to shut up.

In other words, it may well be that the only thing more dangerous than an anti-corruption commission that can hold public hearings that destroy reputations is one that can selectively choose to hold such public hearings.

In private, Labor and Coalition MPs will cheerfully admit they know they are creating a monster.

But they believe voters’ demands for “integrity” in public life mean they are powerless to oppose it on principle.

This is especially true of the opposition MPs, who will vote for this thing in the full knowledge they are making a dreadful mistake. It’s hard not to think they will deserve what they get.