String of controversies puts national anti-corruption body back in focus

Mark Dreyfus recalls a conversation with former ICAC commissioner David Ipp, who presided over the downfall of crooked Labor powerbroker Eddie Obeid.

Ipp, who died earlier this month, was a firm believer in the principle that "sunlight is the best disinfectant", popularised by US Supreme Court justice Louis Brandeis. Before he died, Ipp argued public hearings were one of ICAC's strongest weapons in rooting out malfeasance.

"He explained to me that his successful investigation of Eddie Obeid and his corrupt activities was only possible because he was able to conduct public hearings ... which encouraged witnesses to come forward," says Dreyfus, Labor's shadow attorney-general.

Whether and how often a national integrity commission should hold public hearings is at the crux of the debate about a national integrity commission. It's a debate that gained traction again this month after a string of extraordinary corruption investigations made headlines.

NSW Premier Gladys Berejiklian appeared before ICAC to talk about what she knew of the business dealings of disgraced former MP Daryl Maguire, with whom she revealed she had been in a relationship. In Queensland, allegations of improper donations have bedevilled the LNP during the state's election campaign.

Then there are the questions over a government purchase of land near the Western Sydney Airport and payments from Border Force to Perth shipbuilder Austal for flawed patrol boats, to say nothing of the "sports rorts" scandal that claimed Senator Bridget McKenzie's ministership in February.

The government committed to a federal integrity commission in December 2018 amid pressure from the crossbench, but it has not revealed legislation to make it a reality. Attorney-General Christian Porter says the government, which went to the last election promising a federal integrity body, has since had more important things on its agenda.

"The government chose to focus all of the resources of government on dealing with a global pandemic, which threatened [the health of] hundreds of thousands and millions of Australian jobs," Porter said.

Labor's rejoinder is that no effort would be diverted to release the legislation for a federal ICAC because officials in the Attorney-General's department admitted this week the government had draft laws ready to go in December last year. They have not been made public.

While the government's decision to slow-walk its national integrity commission is Labor's attack line of the week, Stephen Charles QC, a former senior Victorian judge, said the bigger issue is the Coalition's preferred format for a federal ICAC.

The NSW Independent Commission Against Corruption is the most muscular state integrity body, with a reputation for claiming political scalps.

It can start its own inquiries, often holds public hearings, is not bound by the same strict rules of evidence as a criminal court, can go after politicians as well as public servants and has a broad remit, focusing on serious and systemic corrupt conduct.

While the government's draft legislation has not been revealed and Porter has said he is still consulting, it released a consultation paper on a very different model in 2018. The proposed Commonwealth Integrity Commission would have two divisions. The one for public service and politicians would only be able to investigate potentially criminal conduct, would be unable to directly take on complaints from the public, and would not hold public hearings.

Charles, who is on the board of the Centre for Public Integrity think tank, is adamant Porter's model would be "worse than useless" because it would let the government say it had established an ICAC with the force of "a feather duster".

Having the power to investigate conduct that might not hit a criminal standard but is still seriously wrong in the public's eyes is essential to an anti-corruption body, Charles argues, because corruption is a notoriously slippery offence.

He gives the example of the "Sports Rorts" affair: "The whole thing was so tilted as to give the Coalition electoral advantage in the election. Now that is within [international anti-corruption organisation] Transparency's description of political corruption. But there is on the face of it no crime at all."

(McKenzie, who oversaw the community grants at the centre of the affair, and the government have denied all wrongdoing in relation to the sports grants.)

Nationals Senator Bridget McKenzie resigned her ministry over the sports rorts scandal.Credit: Alex Ellinghausen

And like Ipp, Charles believes it is critical for the public to be informed of the conduct public officials undertake in their name through at least some public hearings.

Public hearings and an ability to root out corruption in a broad sense may be ICAC's greatest strengths in the minds of its advocates, but they anger its detractors equally. Liberal MP Jason Falinski has called ICAC a "kangaroo court" that trashes the reputations of the innocent by bringing up surprise evidence and giving people too little ability to defend themselves.

"We're going to bring people in front of the crowd, we're gonna tell you everything that they did wrong, we're not going to give them an opportunity ... to defend themselves or to mount a defence," Falinski said. "And the crowd can then extract justice."

He claims the media enjoys the headlines ICAC generates too much to pay enough attention when people investigated by ICAC are subsequently acquitted of criminal charges. Falinski would like the commission abolished and replaced, not extended in that form to the federal level.

Labor has not outlined its preferred federal ICAC but has laid out some principles, including transparency, which would mean at least some public hearings.

Dreyfus agrees sections of the press can go overboard in their scrutiny of bit players at corruption inquiries who give factual evidence, but argues that is not inevitable. "It's something that the commissioners I think can deal with," he said.

Tim Hale, a QC who has appeared before ICAC representing the targets of its investigations, is not so sure. Unlike when ICAC was established in 1988, he also argues the ends do not justify the means.

"Back in 1988 there was corruption in NSW, systematic corruption and there was a strong feeling in the community ... that something had to be done about it.

"Things are different now," Hale says, especially at a federal level.

As Labor ramps up its attack with a growing list of examples from the federal arena, Hale's claim is likely to be further tested.