Anthony Albanese should be thankful he’s the PM and not NSW premier because the ICAC has sharper teeth than NACC

Anthony Albanese stands with Qantas CEO Alan Joyce as they attend the Qantas 100th Gala Dinner at Jetbase 96 hangar at Sydney's International Airport on March 31, 2023 in Sydney, Australia. (Photo by James D. Morgan/Getty Images)

When Anthony Albanese’s ­government established the ­National Anti-Corruption Commission it copied some but not all aspects of ICAC in NSW.

For the rest of his life, the Prime Minister should give thanks every day for one of those omissions.

Ultimately it might not save his bacon, but it will certainly give him a better chance of surviving than he would under the publicity-obsessed Independent Commission Against Corruption in NSW.

First, the caveat.

Until the accusations in Joe Aston’s new book are properly ­investigated nobody can be ­certain about whether the Prime Minister did, in fact, solicit ­personal benefits in the form of upgrades on Qantas flights when Alan Joyce was running Qantas.

So nobody can be certain about whether he breached the code of conduct for federal ­ministers which currently says: ­“Ministers … must not seek or encourage any form of gift in their personal capacity.”

Also, nobody can be certain about whether Joyce was complicit. So a little caution is needed.

But if Aston is right, the Prime Minister would almost certainly be toast – if he were subject to the ICAC system and not its federal counterpart.

He might still have a problem with the National Anti-Corruption Commission but that problem would be infinitely worse if ICAC were lurking in the background.

This is because a substantial breach of the ministerial code of conduct in NSW is no longer merely a breach of a political standard – it’s corruption.

In NSW, but not federally, ­jurisdiction over the ministerial code has been ceded to the anti-corruption commission – which means there is one penalty for breaches of the code: political death.

ICAC, but not the NACC, is empowered to declare that breaches of the ministerial code amount to corruption, regardless of whether there was any pecuniary benefit.

But while the federal ministerial code is beyond the reach of the NACC, key parts of the federal definition of corruption are identical to that in NSW.

And that definition is broad and vague.

It gives the NACC authority to consider not just the conduct of public officials, but those in the private sector who might have been involved in any impugned conduct.

This is why any inquiry into this affair should focus not just on the conduct of the Prime Minister, but also on that of Alan Joyce and anyone else at Qantas who played a role.

There is, of course, no suggested that Albanese and Joyce have engaged in an act of corruption.

But it is worth considering that the National Anti-Corruption Commission Act extends not just to conduct that has been found to have an adverse effect on the impartial exercise of a ­public official’s powers.

Corruption also includes conduct that, in the view of the NACC, “could” have such an ­effect. The mere possibility is enough.

Significantly, corrupt conduct under the NACC Act also includes any conduct by any public official that constitutes a breach of public trust.

If recent corruption cases are any guide, the courts have concluded that the burden of trust that the public imposes on politicians becomes more onerous as politicians rise through the ranks.

Justice Robert Beech-Jones made this point in 2016 before he was appointed to the High Court.

In rejecting an argument from counsel of former NSW Labor MP Eddie Obeid, the judge said: “The more senior the public ­official the greater the level of public trust in their position and the more onerous the duty that is imposed.”

So while ministers and heads of government have risen to the peaks, they also have further to fall.

Chris Merritt is vice-president of the Rule of Law Institute of Australia