Demand for public hearings at odds with genuine justice
When the Greens, other fringe politicians and activist journalists demand public hearings by a federal ICAC, they are admitting one of two things.
Start with the astounding level of ignorance perverting much of the discussion around a federal anti-corruption body. We adhere to a system of open justice, where proceedings before a court are public, because of longstanding and proven safeguards that ensure an accused person receives a fair trial. But the proposed anti-corruption body is not a court. It does not provide those who appear before it the essential elements of a fair trial.
There is no due process. A person hauled before an anti-corruption body is not told of the charges. They are not given a brief of evidence to formulate their defence. There is no right against self-incrimination, no presumption of innocence. There are no evidentiary rules or legal precedents to rein in rogue judges because a commissioner is not sitting as a judge, and the commission is not a court. The commission can instigate its own investigation. It can use wide-ranging surveillance techniques. It can rely on a wholly anonymous allegation to pursue a person.
If one does understand the critical difference between a court and an anti-corruption body, then it is entirely reckless to demand public hearings. Indeed, it is the antithesis of progress to applaud this medieval feature of some of the state ICACs and demand it be replicated at federal level. Public hearings will cause a surge in public ambushes and show trials as anti-corruption commissioners seek to satisfy this appetite for scalps. Imagine the glee in sections of the media, especially among some ABC journalists, from providing saturation coverage of corruption show trials every bit as warped as their media witch-hunts. This is a rotten habit to feed.
It is true that a federal anti-corruption commission cannot impose a formal penalty on a person in the way a court can. But the penalty is the public show trial, which may or may not be compounded by a public finding of corrupt conduct.
The reputational wreckage of simply being publicly associated with corruption hearings is often permanent, even for a person who is later completely vindicated.
There are myriad criminal laws in this country that cover corrupt behaviour. Are police so hopeless at their job that we must resort to a star chamber that lacks the protections of a fair trial?
If we are not careful, we will repeat at the federal level the fundamental flaws of state ICAC models. Under the NSW legislation, the definition of “corruption” is so open-ended and subjective that commissions are given free rein to behave like ambush units to publicly shame the innocent. The federal draft legislation is equally vague.
The NSW ICAC made damning public allegations against Murray Kear and Michael Gallacher, leaving the careers of both men in tatters, even though both were spectacularly vindicated. There was no apology, no recompense. It’s the same under the draft federal legislation.
Recall how former NSW ICAC commissioner Megan Latham famously described the process of extracting information from a witness using ICAC’s far-ranging powers. It was, she said, like “pulling wings off butterflies”. There is no sign that things will be done differently by the federal anti-corruption body.
Victoria’s Independent Broad-based Anti-corruption Commission has faced allegations that it drove one witness to take her own life. Queensland’s Crime and Corruption commissioner Alan MacSporran resigned after a parliamentary committee found he failed to ensure the watchdog “acted independently and impartially”. As three South Australian King’s Counsels outlined in The Australian this week, the SA ICAC led to a suicide and the destruction of the lives and careers of several public servants and police officers. Only after irreversible damage was done did the SA state parliament amend the powers of their corruption body.
If we are to let the federal police off the hook for doing their job by establishing a national anti-corruption body, there are checks that must form part of its legal architecture to ensure that there is a sensible balance between power and accountability. Otherwise, we will end up with a state instrument of oppression that is more deleterious to our society than any instance of corruption this body presumes to investigate and judge.
Attorney-General Mark Dreyfus is correct to remind us that “these commissions are not courts” when pointing out why hearings should not, as general rule, be public. But he is wrong not to define the “exceptional circumstances” that would justify a public hearing.
In the absence of any such definition, let alone a carefully constrained one, it is extremely hard to see how decisions by this new federal body about what constitutes “exceptional circumstances” can be appealed in a court of law. Dreyfus ought to understand that star chambers are born of this lack of oversight.
There are a few obvious safeguards which should be included in the legislation in order to protect against excesses by this powerful anti-corruption commission. There ought to be a powerful oversight body to review the processes and findings of the commission. The commission ought to be required to apologise for errors it makes, and pay recompense for damage done. A wet-lettuce leaf slap of disapproval – if even that is on the cards – from a parliamentary committee is laughable when one considers what is at stake.
This new anti-corruption commission can only be held to account for its overreach with clear words and definitions in its governing statute. Tightening the definition of corruption is critical. As Chris Merritt warned this week, the proposed body should not have power to investigate conduct that “could” adversely affect the honesty or impartiality of public officials, as distinct from conduct that does adversely affect the honesty or impartiality or public officials.
The “could” test is a bit like empowering a cop to arrest a person who “could” commit a serious offence but hasn’t. That hopelessly wide wording should scare all of us. The teals might be relaxed about indulging whatever flight of fancy that an anti-corruption commission considers “could” tempt public officials – until it comes for them.
Dreyfus is a smart lawyer. He ought to be concerned about his legacy as the nation’s top law officer. Will his name be attached to a federal star chamber every bit as rogue as some that operate within the states, where the lives of innocent people have been wrecked? Or is he determined to ensure that a powerful federal anti-corruption commission is accountable for its actions, decisions and processes?
If so, he will insert a special purpose oversight body into the legislation along with liberally sprinkled rights of appeal to a real court – where due process does apply – in order to control arbitrary, unreasonable or politicised behaviour by this proposed body.
Whether driven by recklessness or ignorance, it is a sign of how shallow this debate has become that so many people imagine that the end justifies even the most flawed, unprincipled, or unfair means. Securing some notable successes at the cost of spectacular failures is not a reform we should countenance. Yet posturing Green MPs and some of the teals brandish the words “corruption commission” as if it is a talisman, some irrefutable proof of virtue, with the insinuation that anyone concerned about their powers and reach wants to go easy on corruption.
One can be equally serious about wanting to expose corruption and about providing a fair and just forum for doing so. Without the latter, we may as well legislate the presumption of innocence out of existence, because that is the real and damaging effect of those who today are demanding public hearings by an unaccountable body with extraordinary powers over imagined conduct that is ambiguously defined by law. That sort of body has no place in a healthy democracy.
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When the Greens, other fringe politicians and various activist journalists demand public hearings by a federal anti-corruption commission, they are admitting one of two things. Either they are ignorant about the critical difference between a court and one of these commissions. Or they are signalling reckless support for public show trials that do not adhere to due process. Being ambushed and publicly hauled in front of an anti-corruption commission can destroy the reputations and lives of innocent people.