The government may be changing its draft. It can e.g. Provide the basis for the idea that the CIC cannot initiate investigations and can only act on references from other agencies. The draft position is untenable because it weakens the Commission compared to other agencies and departments, including those it may end up investigating.
Attorney General Michaelia Cash is likely to correct part of the draft bill, which sets two standards for inquiries — one for officials, including police officers, another for politicians. The Australian Federal Police Association and the Police Federation of Australia want one rule for everyone. Morrison and Cash will fight if they deny it to them.
The government is also signaling a concern for retroactive effect, but its stance is confusing. To stop the Commission from investigating events in the past would be to neutralize it from the outset. Experts believe it should be able to consider past behavior against the laws that prevailed at the time.
Regardless of these changes, the federal plan is to create a weaker body than most of the state and territorial commissions that have functioned for years. The CIC could not put politicians in a public testimony; hearings would be kept secret.
Berejiklian would never have provided public evidence according to the federal model. Voters would never have heard her be asked about her relationship with Daryl Maguire, the former Liberal MP whose financial circumstances led him to leave the NSW Parliament. They would not have heard the recorded phone call that was played during an open hearing last October, where Berejiklian stopped Maguire from telling her more about his offers and said, “I do not need to know anything about it.”
The federal model would never ask a politician in a public forum about his or her relationship with a company receiving large public contracts – which is what happened when NSW ICAC asked former NSW Prime Minister Barry O’Farrell to meet in April 2014. Voters would not hear O’Farrell deny that he had received a 1959 bottle of Penfolds Grange Hermitage, and they might never see the handwritten note confirming that he did.
The federal commission would not set up a public hearing on property developer payments, as Victoria’s IBAC did in 2019, when it asked property developer John Woodman’s staff about the Casey land scandal. This hearing included testimony of a payment of $ 8,500 to attend a fundraiser for Victorian Prime Minister Daniel Andrews.
Liberals view Berejiklian’s fall as a condemnatory confirmation of the shortcomings of the ICAC model, which was revealed with O’Farrell six years ago and former NSW Prime Minister Nick Greiner in 1992. Greiner was cleared of corruption by the NSW Supreme Court over the appointment of a MP to a public service body, but that decision came too late to save him from political attack. He withdrew before parliament could try a no-confidence motion.
The ICAC did not force Berejiklian or O’Farrell to resign: both did so based on what emerged in hearings. Days before O’Farrell left, the adviser to the ICAC, Geoffrey Watson, SC, largely advised the prime minister and a minister. “We have found no evidence to imply any kind of corruption,” he said. Berejiklian resigned before the next hearings even began: the trigger was an ICAC press release that said it would investigate whether her behavior involved breaches of public trust.
This is an ICAC’s power: to change policy through public declaration and open consultation. It does not judge, because it is a matter for the courts. It does not break, because it is a matter for Parliament. When its target is a politician, a commission can present evidence that shifts the scales of the public debate on whether that politician should stay or go. These scales work very differently from the scales of justice.
Those who hate this power overlook how necessary it may be to find corruption in politics. Former NSW Minister Eddie Obeid flourished under a political system that allowed his business to go unchecked. He even won $ 162,000 in a defamation suit against the publisher of this newspaper in the NSW Supreme Court in 2006. It took ICAC to uncover government agreements that gave his family a $ 30 million windfall.
But the Left is not the only one who is in doubt about bringing this power to Canberra. There were concerns in Labor about going too far when former leader Bill Shorten and his shadow cabinet discussed their policies before the 2019 election. Labor chose to back a powerful federal ICAC, but only after a debate over whether it could lead to “show trials” for politicians.
There is no sign of division within the coalition, which means there is no pressure on Morrison to go beyond the very limited bill already circulating. More than half of the lower house does not want the NSW model if it accepts a corruption watchdog at all. Proponents of the strongest possible reform do not have the numbers.
The scene is set to a stalemate. Cash plans to submit a bill to Parliament in the coming weeks after three long years of quarrels since the coalition promised a new watchdog. There has been at least a year of detailed debate on the draft government plan. The message from the government is obvious: it will not really do anything.
Morrison feels so strongly about the risk of an NSW model that he is unlikely to negotiate with Labor and the bench to change the final bill. Labor would probably like to make the theme of corruption part of its campaign in the next election, citing funding programs “sport rorts” and “car pork”, which means it may prefer to reject the government proposal and promise a stronger watchdog under a Labor government.
The chances of a crossbench deal also appear to be slim. The government could get its way with the support of Pauline Hanson’s One Nation and at least another, but it would fight to get Rex Patrick, the South Australian independent, to campaign for integrity and transparency when his position is at stake in next year’s election. . Tasmanian independent Jacqui Lambie is not impressed with the government, which could leave the result to another South Australian, Stirling Griff. There is no guarantee that Hanson will run with the government: A public debate on a docile watchdog could make it difficult for her to back the bill, as she is also up for re-election next year.
An election test is safe. The coalition will promise action, while Labor will promise to create a stronger watchdog who accuses Morrison of being weak in relation to corruption. First, however, they must decide whether the new Commission lives or dies in Parliament.
One of the arguments against change is that politicians have always dealt with pork fat. The $ 100 million “sports rorts” program, or the $ 660 million promised for parking lots, can be shrugged off by some pointing to the original “sports rorts” affair in 1992 to argue that some things never changes. But the amount makes it certain: The projects that were curled up on a whiteboard three decades ago were only worth $ 30 million.
“If you want more responsibility, and if you want this kind of mistake, does that mean it’s not worse now than it was 20 years ago or 40 years ago?” asks Keith Dowding, Professor of Political Science and Political Philosophy at the Australian National University.
“If ministers are not embarrassed that things are being revealed in parliament and that journalists are criticizing them, then you might want a different process, in which case an integrity commission with teeth could be the way forward.”
But Dowding, who has long written about ministerial responsibilities in Australia and other countries, is wary of the popular assumption that rorts are worse. “The data we have shows that it is not exactly the case that it is worse now,” he says. One trend, however, is the deterioration in public service.
“One of the things that has changed, and that makes it easier for the government to do that kind of rorts, is that public service has been weakened,” he says.
“At the top end, it has become more politicized. You have far more people who are employees and political appointments and who make decisions so that a large part of the public service integrity has disappeared. So I think there is a structural problem in the way the government is now functioning, both between ministers and public service. ”
There is already evidence of corruption. The Australian Law Enforcement Integrity Commission (ACLEI) announced on 23 August that a former Australian Border Guard (ABF) had pleaded guilty to forgery and theft. On September 1, it said that a former official of the Ministry of Agriculture engaged in corrupt behavior by helping a construction company. On September 8, it was stated that a former ABF officer had helped a drug syndicate.
One of the goals of the new commission will be to absorb the work of ACLEI. There is no dispute about this because the argument among politicians is about the power to investigate politicians. In the debate about how far this power extends, there can at least be agreement that politicians cannot escape control.
The federal government is bigger than ever, with more power in all areas from social services to national security and with more money flowing into projects ranging from local shower blocks to nuclear submarines. The potential for corruption is enormous.
Who knows what a strong integrity commission can reveal? Or what can it deter?