We are in the middle of an emergency – the ICAC should have waited

The NSW Independent Commission Against Corruption has become the James Comey of Australian politics – announcing an investigation into alleged historical misconduct at the worst possible time, thereby forcing the exit of a powerful female leader the state needs.

Fortunately, we live in a parliamentary democracy and the exit of premier Gladys Berejiklian is not going to lead to the election of a Trump-like replacement. But it is going to deprive the state of steady, experienced leadership, which we trust, at a difficult time. One week before “freedom day” is not when you want a new leader in charge of public health decisions.

Gladys Berejiklian annouces her resignation as NSW Premier on Friday. Credit: Dominic Lorrimer

So why couldn’t the ICAC have waited before making its investigation into Berejiklian public? Berejiklian says the COVID-19 crisis made it irresponsible for her to merely stand aside while the investigation was pending, so she resigned. Some might say she could have stayed but that would have been a regrettable weakening of her own high standards for ministers in this context.

There are three reasons that might point against the ICAC choosing to delay an investigation: first, the seriousness of potential alleged misconduct (if a person in public office stole billions of dollars, we would want it investigated promptly). Second, the likelihood of re-offence. And third, the right of the public to make electoral judgments informed by knowledge of potential misconduct.

Yet on what we know, none of these factors seems to apply in this case: unless there are new allegations still to emerge, Berejiklian’s involvement in the alleged misconduct of the member for Wagga Wagga has been well known to voters since last year and an election will not be held until 2023.

The conduct arose in the context of a lapse in judgment by Berejiklian linked to her personal life – and a relationship that has since ended. And the resource allocation decisions we know of, which are under investigation, may well lie in the grey zone between conduct that is lawful and unlawful. Indeed, they may simply have been an unpalatable and regrettable albeit lawful decision to allocate resources to regions and seats within NSW allied to the government.

Former member for Wagga Wagga Daryl Maguire, who was in a relationship with Gladys Berejiklian.Credit: Janie Barrett

We are also in the midst of a major public health and economic crisis. October may well bring a lot more pressure on our hospitals and COVID-19 road map, making it a critical month to have experienced leadership at the helm. In effect, we are in an emergency where non-essential issues need to wait until there is scope for attending to business as usual. Announcing an investigation that coincides with this emergency thus effectively forces the Premier’s hand – and undermines the public’s right to retain their preferred leader.

Victorian Premier Dan Andrews was able to take an extended leave for health reasons, but fortunately for him it largely coincided with better not worse times for pandemic management. Berejiklian deserved the same opportunity – to step aside to answer the relevant allegations, without undermining her capacity to lead the state through a crisis. The ICAC’s COVID tone-deaf decision-making, however, meant she did not feel she had that option.

There is nothing in the ICAC’s legal mandate that expressly empowers them to make pragmatic judgments about the timing of their investigations. And some experts say that this means they are not entitled to make such judgments. But I would argue the power is implicit: the ICAC makes judgments akin to those made by prosecutors, which are always understood to be discretionary and exercisable in ways that involve judgments about the public interest.

We would have a better ICAC if such judgment was expressly authorised by statute. A discretion of this kind could also be conditioned on factors such as a person’s health or pressing public emergency, or subject to an express time limit on any decision to delay pursuing an investigation.

Changes of this kind could also be accompanied by a broader review of the kinds of conduct the ICAC (or any new federal equivalent) has jurisdiction to investigate and its scope to make judgments about confidentiality and proportionality as part of how it conducts it proceedings.

Strong democracies require the existence of strong and independent integrity bodies. But comparative experience suggests there are dangers to such bodies over-enforcing any anti-corruption mandate. A strict liability standard can be weaponised by political opponents within and outside a party, and to bad ends. Decent leaders with peripheral involvement in corruption, or low-level misconduct, may be replaced by far worse political leaders in ways that damage democracy and our confidence in it. Witness Brazil and the removal of president Dilma Rousseff and replacement by Jair Bolsonaro.

There are clear dangers to introducing a more overt form of pragmatic balancing into an independent integrity body’s decision-making. Doing so may undermine its capacity to stand above partisan politics and maintain public integrity and confidence in our democracy.

That is a debate, however, for the long run – both in NSW and at the federal level. For now, what is clear is that we have lost one of our most admired and successful premiers, who despite her mistakes, is widely regarded as one of Australia’s pre-eminent female political leaders. And there are many men and women around the country who regret that loss.

Perhaps if she clears her name Berejiklian’s career in Australian politics will not be over and she will be back, in Canberra at least. Alternatively, perhaps we may soon learn of fresh allegations that would have forced her to resign anyway. But if our COVID road map goes off the rails, I suspect we will look back on this moment the way Americans look back on the events of October 2016, when FBI director Comey announced he was reopening an investigation into Hillary Clinton’s emails just two weeks before the US election. That is, with true regret, and the sense that if only these investigators could have waited, things might well have been different.

Rosalind Dixon is a professor of law and director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney.