The bar for potential ‘corruption’ must be set much lower than blatant criminality

Editor’s note: An earlier version of this article mistakenly referred to Alex Somlyay instead of Adem Somyurek. The copy has been changed to remove Mr Somlyay’s name entirely. There is no suggestion he has been accused of any corruption or wrongdoing.

It might sound, look and smell like a corruption inquiry, but the spectacle known as the Barilaro hearing in the NSW Legislative Council is not a real corruption inquiry.

A real corruption inquiry is what the Independent Commission Against Corruption has just concluded against John Sidoti, the Liberal state MP who lobbied Canada Bay Council to rezone properties in Five Dock for his family’s financial benefit; or the political corruption the ICAC’s Victorian counterpart has uncovered in connection to Labor MP Adem Somyurek.

Former NSW deputy premier John Barilaro.Credit: Dominic Lorrimer

A real corruption inquiry is under way in the ICAC looking at a Hurstville councillor who allegedly took $170,000 from a property developer, plus overseas trips and escort services, which he believed were then used to blackmail him. Choice stuff.

By contrast, the NSW Legislative Council investigation into the appointment of Barilaro to the New York trade envoy job he had created is not concerned with brown paper bags, gross misuse of public funds or potential criminal prosecutions. Its brief is simply to find out what the **** happened. It can’t compel witnesses or trigger prosecutions, although the ICAC is reported to be examining its transcripts to see what can be taken further. When it comes to consequences, the upper house inquiry has no teeth other than the falsies inserted by public opinion.

This does not make the inquiry second-order or unnecessary. To the contrary: we learn much about the true workings of government from these fact-finding probes. The limitations on their powers can be an advantage, as they roam freely through the sausage factory of politics.

Already, these hearings have shown us how things work in NSW. The New York position was awarded, rescinded, then re-awarded to Barilaro – all apparently without anyone breaking any rules. Jenny West was never actually offered the job; it was never described as a “present” for someone else, though that was her impression; the politicians only considered taking the power of appointment away from the bureaucrats for a brief moment that was, nevertheless, telling; the minister, Stuart Ayres, is “grossly offended” by the suggestion that he interfered, yet he did cast an eye over some of the candidates and comment that they didn’t impress him.

Giving Barilaro the job wasn’t a crime, but it was perfect. Influence moved in and then vanished again, like one of those purchasing tokens that vanish after their validity expires. There was a certain politico-bureaucratic beauty in the entire process … unless you were West, the one individual who was regarded as dispensable; and only if you were blind to the public reaction once Barilaro’s appointment was announced.

No body, no crime – but if the architects of the new federal corruption commission think these are not the kind of dealings that triggered the national electoral revolt of May 21 then they are missing the same point that Scott Morrison missed when he dismissed the NSW ICAC as a body looking into trivial matters such as “chasing down your love life”. He was wrong. Public opinion is more sophisticated than he took it for, and it will not be fooled by a corruption commission that looks only into rampant and blatant criminality.

In supporting calls for a federal ICAC, the electorate and the candidates they backed expressed a desire to root out all the subtle connections and parlour games of improper influence, a clear wish for systematic and, if it’s not too old-fashioned to say, moral change.

So far, the signals from Attorney-General Mark Dreyfus show some promise. He wants the commission to target “serious and systematic” misuse of powers, and has set up a taskforce to lay the groundwork for a “powerful, transparent and independent” body with the power to compel witnesses and documents, receive public referrals, and send matters to criminal prosecutors and regulators, in line with Labor’s “paramount objective” to set up the commission by mid-2023.

Barilaro has denied he did anything more than apply for the New York job, after he left politics. His having created the job was mere happenstance. If the public disgust at the saga has made one thing clear, however, it is that a restrictive, technical approach when investigating corruption will not suffice. “Taking the piss” does not exist in the criminal code, but it touches a public nerve in ways that rank criminality does not.

What has happened in NSW might not be “serious” financially but, if proven, it would be deeply “systematic” – meaning it would be a case of the system being made to produce an outcome – and the public has shown it is even more concerned about “systematic” malfeasance, insiders smoothly working the system without any consciousness that it might not be acceptable outside the circle of power, than it is about “serious” one-offs.

The teal independents were elected on two core issues – climate change and corruption – and if the legislation for a federal ICAC does not account for the public’s belief that the seriousness of political corruption extends beyond dollar signs, then Labor will be punished electorally in the same way the Coalition was.

Next to the amateurs at state level, Commonwealth politicians and bureaucrats generally play pro ball. The responsibility of the new federal commission cannot just be to root out the shonks, the proven crims and the candy-store owners. This entails risk for the new government, as it’s an established fact that the people who really want to see the misuse of power exposed are the people who don’t have it.

Labor has power now, but in setting up this commission, it must retain the mindset of the outsider who aims not just to pilot the engine but change the way it operates.