Easy to roll out pork barrels in a grey area

IT has been a fortnight of backroom wheeling and dealing between party chiefs and independents. A fortnight of electoral inducements of hundreds of millions of dollars in return for their support, and the personal sweetener of a handsomely remunerated cabinet seat for the loquacious Rob Oakeshott, which he declined yesterday.

But the distinction between political pork-barrelling and straight-out bribery is as muddy as a rural bog. If the test is what an ordinary member of the community would regard as corrupt, the financial largesse since the federal election must get close to the mark.

The bottom line, however, is that while existing laws technically may render such conduct potentially improper, horse-trading politicians who offer or accept significant benefits as part of a quid pro quo are cut more slack than the rest of us.

It's the nature of politics. They would argue, accurately for the most part, that the direct benefits accrue to their constituents. Only the most audacious or extraordinary cases - involving secrecy, brown paper bags and direct personal benefit - would excite police and prosecutors.

When Queensland's Crime and Misconduct Commission grappled with this in a case involving then premier Peter Beattie and an alleged $800,000 bribe to an indigenous community, it determined that "for the conduct to be corrupt it must go beyond the limits imposed by the criminal law on the extent to which politicians may . . . seek to secure influence, to strike compromise and to gain advantage for themselves and others".

Otherwise, argued the CMC, we would run the risk of demanding standards of our public officials that were beyond their reach and that also might be prejudicial to the public purposes we asked them to serve for our benefit.

The CMC came to its view after it sought an opinion from leading counsel Robert Gotterson QC, who decided there was a prima facie case to be prosecuted. His legal opinion stated: "It is very difficult to draw the line. I am inclined to think that, technically, it would be open to a tribunal of fact to find that what was sought here was sought corruptly."

As Colin Hughes, a former federal electoral commissioner, tells Focus: "Nobody knows where the line should be and [with] certainty where it is. It's a very elastic situation. Ultimately, openness is the obvious thing.

"We need to devise some mechanism that accommodates the political reality but prohibits or discourages the acts of bad faith."

University of Queensland professor Graeme Orr tells Focus: "The law is undoubtedly fuzzy . . . about bribery involving inducements and someone with a public duty or an obligation.

"We are going to see more of these allegations because the new paradigm will be dirty and the opposition will be ferocious. The independents and the Greens will be under enormous pressure from lobbyists and potential donors. We will see how squeaky clean they are, having said for years that the major parties have been riding the gravy train."

By Orr's interpretation, the section in the Commonwealth Electoral Act dealing with an offence in a federal election means that "bribery involves offering or asking for 'any benefit' to influence 'electoral support'. [But] declarations of public policy or action are exempt."

In a recent analysis of electoral bribery for the Australian Journal of Politics and History, Orr says: "It explicitly covers not just selling one's vote but the allocation of preferences or publicly offering or withdrawing support for a party or candidate."

But the interpretations are fraught when the currency of politics is deal-making: as in, give me your support and we'll roll out the National Broadband Network in country areas first, notwithstanding the significant extra cost in doing so; we'll rebuild your electorate's hospital; we'll fund additional staff for your office.

"There is almost no binding judicial precedent on the application of the law to political deals," Orr says. "This is not because the law does not potentially cover such deals . . . Rather, it is because the authorities choose not to prosecute, whether because of evidentiary hurdles or because those scandals [that] come to light do not seem blatant enough."

One such scandal came to light after independent Tony Windsor disclosed an alleged 2004 attempt by the then Nationals deputy prime minister John Anderson to bribe him with the offer of a plum overseas diplomatic posting in return for quitting his seat of New England, forcing a by-election that everyone knew would be won by the Nationals.

Relating part of the alleged offer, Windsor told federal parliament: "One of them also said, and I quote, 'The government makes about 500 political appointments, it can be done.' "

Anderson replied publicly: "I repudiate completely the claims. I do not engage in corrupt behaviour. So far as I am aware at all times I have maintained what I believe to be both the law and the spirit of the law."

The Labor opposition demanded a forensic police investigation. Part of the controversy was bound up in $6 million in federal government funds for an equine centre in the electorate. The Howard government was accused of not wanting Windsor to get the credit for the spending.

Labor senator Kim Carr said at the time: "It's quite clear that funding was made conditional on political criteria being met, which is, frankly, very shifty. I think there needs to be an explanation as to how it is that the government thinks that they can knock back funding arrangements because certain people are associated with them that they don't like.

"Surely the projects stand or fall on their merits, not on the basis of whether or not the [Nationals] can get some short-term political advantage out of it."

The Australian Federal Police eventually gave a brief of evidence to the commonwealth Director of Public Prosecutions, whose office determined there would be no prosecution. But Carr nevertheless has a point. Surely the projects "stand or fall on their merits" rather than on the basis of short-term political advantage.

As former NSW independent Ted Mack, who correctly predicted that Oakeshott and Windsor would support Labor, said yesterday, "You can't draw the line until it [electoral bribery] becomes very blatant because marginal seats are always pork-barrelled."