NACC must apply public interest test without favour

National Anti-Corruption Commission head Paul Brereton has invoked the public interest to guide the decision-making of the powerful and poorly regulated new body. Given the history of extrajudicial overreach by corruption watchdogs in lesser jurisdictions, this threshold test must be applied not only in theory but also in fact. Confirming that 44 online and five phone referrals have been received in the first hours of business, the NACC has a big opportunity to send a message about how it will operate. First, it must make it clear the NACC will not allow itself to become a plaything of the political class. The unseemly rush to report, most notably by the Greens, is unfortunate but not unexpected. The NACC also must decide how much time it will spend reviewing matters that already are in the past and relate to the actions of former public officials who no longer have the power to make decisions. It must carefully weigh the public interest of conducting its hearings in public and the likely consequences for those involved regardless of the outcome.

There are clear warnings about the dangers of following the model of the NSW Independent Commission Against Corruption, which has been mired in controversy since its inception, the latest being its handling of investigations into former premier Gladys Berejiklian. There is a widespread view across party lines that the ICAC preference for public examination of Ms Berejiklian and lengthy deliberations was out of proportion to what was discovered and unfair. Mr Brereton said in deciding whether and how to deal with a matter, the NACC would consider the seriousness and scale of the conduct, whether there was a realistic prospect of finding corrupt conduct, whether there had been other investigations of it, and whether it was preferable that another agency investigate it. “Above all, we will be concerned with whether and to what extent a corruption investigation by the commission is likely to add value in the public interest,” he said. This is a crucial test that must be apolitical in its application.

Mr Brereton said the NACC might decide to investigate some matters to clear the air, even if there did not appear to be a significant prospect of a finding of corrupt conduct. Without prejudging the outcome, complaints that have been made about the process surrounding a multimillion-dollar compensation payment to former Liberal staffer Brittany Higgins might rightly fall into this category. A spokeswoman for Liberal senator Linda Reynolds confirmed she would be referring the matter to the NACC. In this case the investigation would involve existing public officials and considerable expenditure of public funds.

In the absence of clear evidence of personal corruption, complaints about the allocation of public grants by former governments, both Coalition and Labor, would be more difficult to justify. The NACC must resist being swept into the daily grind of the partisan political process. Mr Brereton said the NACC’s focus primarily would be on serious instances of corruption, especially those of a systemic nature. His definition of serious or sustained was something that was more than an isolated case or involved a pattern of behaviour, or something that was embedded in the system. On public hearings, he said the NACC would endeavour to be as open to scrutiny as possible while weighing the loss of reputation suffered by those being investigated. He said the main considerations would be the significance of the alleged corrupt conduct, the desirability of exposing evidence and the appropriateness of public scrutiny of NACC activities weighed against any unfair prejudice to a person’s reputation, privacy, safety or wellbeing.

When the bill to enact the NACC was introduced to parliament we said it would be manna from heaven for those with political axes to grind, seeking opportunities to embarrass their foes. The rush to report has done nothing to change our mind. We continue to believe voters are best placed to pass judgment on how governments perform and how they are satisfying the needs and demands of individual electorates. If politicians fail they can be thrown out of office. Investigatory agencies that run amok are not so easy to dislodge. The public has been encouraged to support external review of politicians to stamp out corruption, real or imagined. The NACC must now prove its worth. But in cases where illegal activity has taken place, investigations and the public interest will always be best handled by the police.