Corruption body must not become a law unto itself

Keeping corruption out of public office is a worthy aim as well as being popular with voters. The Albanese government is responding to political and public pressure, some of its own making, in establishing a new crime-fighting body, the national anti-corruption commission. But identifying the problem and getting the details right are more difficult than making a public announcement. There is little on the public record to suggest Australian public life is rife with corruption or that matters have gone unexplored because of the absence of a dedicated anti-corruption body. The history of state anti-corruption bodies does not inspire confidence that they add in any great way to public life or give value for money for the millions of dollars that are spent on them. They have been too easily embroiled in partisan politics and used by politicians in power to avoid media scrutiny. The scalps that have been claimed often have been secured on dubious grounds.

Beyond the reflective acceptance of additional controls, something always popular with the left, are serious questions that must be properly considered before a new body with sweeping powers of compulsion is released on to the public. A clear line must be drawn between corrupt behaviour and the normal business of politics. So, too, must the difference be clearly understood between the public spectacle of an inquisitorial show trial and the serious business of criminal investigation and judgment before a court of law. If criminal matters are identified they should be left to the police.

Attorney-General Mark Dreyfus has made it clear that the NACC will have a free rein to decide how and on what it spends its $262m budget. It will have the power to initiate investigations based on tip-offs from the public, to prosecute an expanded definition of corruption to the one proposed by the Morrison government, and it will be free to expand its investigations to include third parties such as unions, lobbyists, business interests and bidders for government contracts.

Under the proposed laws, the NACC will have the power to obtain a warrant to tap the telephone communications of the prime minister and cabinet ministers. Presumably this will include the power to surveil the emails, search histories, private dinner conversations and intimate discussions of politicians and public servants and their contacts. Commission officers will be able to search department offices without a warrant, including the Department of Defence, with the exception of a very limited range of “prohibited areas” such as the Woomera Prohibited Area or the Joint Defence Facility at Pine Gap. MPs’ offices can be searched with a warrant, as can the offices of publicly owned media companies, the ABC and SBS. Apprehension about the misuse of these powers can itself have a chilling effect. What confidence can company executives have in dealings with government that are not supervised by lawyers? How is the line drawn on mission creep, where snooping by authorities leads to places and issues tangential to the initial operation? What keeps scandal and salacious gossip from falling into the wrong hands? How can members of parliament police a body that is primarily designed to investigate them?

Media companies have been assured their offices cannot be raided without a warrant and that the bill introduces additional safeguards that would apply before a search warrant could be issued in relation to a journalist or their employer regarding a secrecy offence. But search warrants still can be issued against journalists and their employers. Left unclear is whether journalists can be forced to submit to examination in a star chamber environment, as is the case in some states, denied the right to legal representation and told they cannot tell anybody about their dealings with investigators, including partners and employers.

At stake is the ability of MPs to advocate for and represent their constituents. If too tight a definition is drawn, MPs will lose the ability to lobby for resources and infrastructure that benefit those they have been elected to serve. Who is to say that non-elected bureaucrats with no contact with ordinary people in places they probably have never visited will make better decisions about where to spend public money?

The question of public hearings has generated a lot of attention. Other than to satisfy the mob, why is it better that hearings be held in public? There is a danger that the process becomes the punishment. Rule of Law Institute of Australia vice-president Chris Merritt argues the NACC has been stripped of the checks and balances that seek to prevent abuse of public hearings in NSW. Unlike the Independent Commission Against Corruption, the power to decide will be vested exclusively in the hands of the commissioner who leads the NACC. The argument made by Mr Dreyfus that public hearings would be held in exceptional circumstances is not convincing. His example that exceptional circumstances involved a matter being before a current or projected criminal trial or involved national security information suggested that public hearings would be the norm. Justice must surely be seen to be done, but in a court of law. The NACC must not be allowed to become a law unto itself. Once set free to roam, extrajudicial investigatory bodies are difficult to restrain.