‘Political sport’ can end with MPs held to account

NSW Premier Chris Minns. Picture: Gaye Gerard

NSW premier Chris Minns has just been given a valuable if traumatic lesson about the true impact on that state of its Independent Commission Against Corruption.

The question now is whether this will be enough to persuade the Labor government to fix a problem that has been damaging governance in that state for decades.

Labor’s political opponents used their numbers on a parliamentary committee to produce a report that referred Minns to ICAC for reasons that would charitably be described as unpersuasive.

Those accusations will now be considered by the commission, which is struggling to deal with issues of greater consequence.

Last month I outlined in this space how ICAC has, in some cases, been taking more than seven years to produce briefs of evidence concerning criminal offences.

And now it will be required to make a preliminary assessment of the anti-Minns accusations produced by the non-Labor majority on that committee.

And for what? The non-Labor majority was unhappy about what it described as “unanswered questions” about “conflicts of interest”.

Nobody with a proper understanding of the English language could ever describe the material about Minns that is outlined in the committee’s report as evidence of wrongdoing.

It’s worth considering what the Labor minority on that committee had to say.

It’s tucked away on page 141 of the report:

“Having taken more than half a year of the committee’s time, concerns repeatedly raised by particular committee members have not been established by the evidence.

“They remain mere assertions, presented as facts, by vocal opponents …

“If the committee has unanswered questions regarding the Premier’s involvement, it must be because the questions were unasked – the Premier’s chief of staff answered all questions, including supplementary questions, that were put to him.”

The real issue here is that it is too easy for politicians to use the threat of ICAC for what Minns described as “political sport”.

“We’ve seen the politicisation of the ICAC for a very long time in NSW,” he later told the media.

“It is a political sport, but that doesn’t make it right, and I think it’s a leading indicator why more people don’t enter politics.”

To ensure the accusations against Minns caused maximum damage, somebody on that committee leaked to the media before the committee’s report was tabled in parliament.

Referring ministers to police and other authorities on grounds that turn out to be spurious has become standard practice for members of parliament – and not just in NSW.

When Labor was in opposition federally, former attorney-general Christian Porter told parliament that Labor had made “10 failed referrals on serious criminal matters, all of which have come back with zero”.

It is entirely proper for politicians and anyone else to report wrongdoing to the authorities.

But seeking to weaponise that in a privileged forum, or in leaks to journalists, is a step too far.

It undermines the presumption of innocence and inflicts reputational harm that cannot be remedied, even by a subsequent exoneration.

If Minns decides to fix this problem he is unlikely to face opposition from John Hatzistergos, the ICAC Chief Commissioner.

In August, Hatzistergos issued a warning about the practice that seems to have had little impact.

This is what Hatzistergos said: “The weaponisation of the commission for political advantage, whether it be via a referral or some other means, is inappropriate. Doing so, irrespective of whether there is a reasonable basis for such allegations, may cause political damage, and such allegations should not be used as a weapon to level at a political rival.”

If Minns is serious about ending this “political sport” a good place to start would be a proposal Christian Porter put forward five years ago that never made it on to the statute books.

Porter’s plan would have meant public disclosure of reckless or false allegations to federal investigative agencies would have become an offence under a new part of the Commonwealth Criminal Code.

With a little tweaking, this could be applied in NSW and the other states and territories that all have anti-corruption commissions.

Porter’s proposal had been designed in a way that meant politicians and everyone else would still be able to safely refer suspected wrongdoers to the proper authorities.

But the process would no longer be vulnerable to political pointscoring and manipulation.

The least complicated way of complying with the proposed provision would have been to make absolutely sure that allegations of wrongdoing were true before they were referred to the authorities and made public.

A lack of rigour would have deadly consequences: a career-ending criminal conviction.

That might have focused a few minds.

If the facts were uncertain, another course would be to ensure that no public statements were made at the time of the referral and to simply wait for the authorities to do their work.

If a public statement was made, and the allegation turned out to be false, the focus would turn to whether the person making the allegation was reckless as to the truth, whether they knew the statement was false, whether information had been omitted that made the allegation misleading, and whether this was all done with the intention of damaging someone’s reputation.

If this procedure had been in place, the community would have had the benefit of a non-political benchmark to assess the conduct of that parliamentary committee.

It might still have used parliamentary privilege to reveal its referral of Minns to ICAC.

But if the Premier were exonerated, the community would know who to hold to account.

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