For many leaders of the legal profession and the federal integrity advocacy groups, the last two days have been a whirlwind of activity in Parliament House in Canberra.
It was in a triumphant moment, although it didn’t always feel like it. To sit together in the public gallery and see a man of integrity, Attorney General Mark Dreyfus, introduce his legislation to the House was a moment that crowned years of dedication by a number of individuals and bodies. It felt like an oddly matter-of-fact event to crown so much hard work. It was also a signal that the battle for the best model continues.
Dreyfus has introduced a potent model. It is an actual, strong anti-corruption commission. Unlike the previous government’s CIC, it can begin to challenge practices that have wasted billions of dollars the nation demands are spent for the general good, not political advantage. The cynical abuse of government norms has also damaged democracy. Dreyfus and his Attorney General’s department have designed the National Anti-Corruption Commission (NACC) to be part of a framework of instruments that will prevent corruption as well as detect and address it when it occurs.
When The Australia Institute (TAI) first instituted the Judges Committee in 2017 (now the National Integrity Committee), they organised interviews with the ABC. Reporter Matt Peacock asked them what they were pursuing. When the response was a federal anti-corruption body, he burst out with “Buckleys!” Peacock appeared astounded that the judges were able to start listing matters that needed investigation. Even so recently, it was possible to imagine that Australia had no real corruption problem, that it was an issue for less honourable nations.
The Accountability Round Table (ART), founded in 2012, brought together leading former judges, academics, former public servants and politicians as well as senior practicing lawyers to provide a think tank for the problems and solutions. Its roster is full of the stars of the field. Transparency International’s Australian branch, and professors, integrity commissioners and more around the nation have campaigned to establish that this fight for integrity and accountability is crucial.
The TAI’s dynamo, Han Aulby, went on to found the Centre for Public Integrity (CPI) in 2019 which has proved amongst the strongest forces placing integrity on the electorate’s list of key concerns. Han’s constant work to make sure the most expert people explained to the media and the public the utter centrality of government integrity has been both crucial and inspirational. Anthony Whealy KC is the chair of its board of directors and one of its most prominent voices.
Representatives of the groups also met with Simon Holmes a Court, convincing him to add integrity to the concern for climate and women’s representation in politics forming the tripartite platform that underpinned the Climate 200 mission. Representatives went on to make themselves available to educate the new independent candidates on the nature of the integrity problem and the best solutions.
In March this year, Stephen Charles AO KC (ART, CPI, TAI Judges Committee) and Catherine Williams (CPI researcher) published Keeping them Honest. This book set out the case for a federal anti-corruption commission. In his forward, a lion of the Australian legal profession Sir Gerard Brennan AC, KBE, former justice of the High Court, explained why men and women of a profession trained towards reticence were speaking up with such vigour, in the face of the professional character, not to mention sneers by members of their profession, politicians and the “conservative” media.
Brennan observed, “Judges and former judges do not usually enter the public political arena. The judiciary does not have a political agenda. Its function is to resolve disputed facts and to apply the law to the facts as found, unaffected by political influence. Lest intervention on political issues might seem inconsistent with political independence, even former judges usually abstain from political comment. But corruption that erodes honest administration and the disregard for the rule of law in the pursuit of political power are not issues about which former judges must or should be silent. They are issues that affect the social health of the community.”
I assisted Stephen Charles, my father, in the writing of his section of the book. I have watched him tirelessly push the issue for over a decade in his retirement. The disappointment in seeing his researched and deliberate recommendations for Victoria’s IBAC become a neutered version in Ted Baillieu’s model. The relief at seeing Dan Andrews’ government strengthen it. The further disappointment that the Andrews amendments included the words that public hearings must only take place in “exceptional circumstances” which continues to cripple it, and which the Commissioner is fighting hard to have parliament remove. Endless interviews and op-eds and panels and lobbying. Educating post-graduate legal students on the matter in university courses. For those of us around him, this moment is an unspeakable relief. He is not an attention-seeker, whatever his peers – and the News Corp journalists in their ad hominem attacks – have said. He is a man who cares deeply that Australia does not allow our government to dissolve into the corruption and chaos that were beginning to overwhelm the norms and practices and regulations instituted to prevent them.
As soon as the integrity advocates emerged from the Chamber yesterday, they were handed the legislation and explanatory memorandum. In that moment, and then in a (generous) MP’s office, they began poring over the fine print of the legislation, looking for the successes but more importantly, the flaws, big or small, that need fixing before the body’s design becomes law.
They are mostly impressed by Dreyfus’s achievement. This is a good day in Australia’s history. There are flaws present, and it is strongly hoped that there is scope to make improvements, but this is a good bill. Mark Dreyfus has earned his role through merit, and this achievement, despite doubts in his own caucus as well as resounding opposition from the Opposition until recently, must be noted.
The body will need a third more in its budget than has been allocated to do the job properly. (The previous government tried to cripple the Auditor-General’s office by starving it of funds, but this did not stop it from exposing the historic scope of the rorts that helped bring the Morrison government down.) There is some concern that the attempt to prevent the body from being overwhelmed with work by excluding outside forces working to corrupt the system will be problematic in the years to come. (The AFP has not proved itself able to cover the gap there.) Legal privilege has too much protection, taking a hearing into private territory, which is not the preferred practice in this kind of body. Whether the media is properly protected must be determined. The ability to search parliamentary offices without a warrant is uncertain (with potentially less power than the Auditor-General possesses.)
These are relatively minor quibbles. The main flaw was clearly added at the last moment since, as the drafting of legislation goes, this is a clumsy fit.
That public hearings should take place only in “exceptional circumstances” was described by a regular counsel-assisting in ICAC proceedings CPI director as an intentional “brake” on public hearings rather than a protection. It is a term that is as imprecise, Geoffrey Watson SC continued, as the length of a piece of string. It will grant well-resourced targets the immediate tactic of taking their investigation to court to argue that the matter is not “exceptional.” The definition will fall to the whims of judges at first instance or on appeal. The delay might last two years as it travels through the levels to the High Court. In the process of proving that the investigation is of an “exceptional” character, the investigators will have to reveal their case and evidence, giving the target a substantial advantage and perhaps the ability to scupper the investigation.
Public hearings are crucial to anti-corruption bodies. They prove to the public that corruption is not acceptable and is being addressed. They bring out new witnesses that did not know the matter was being investigated. They educate public servants and politicians – as well as the people who would do business with them – where the limits lie.
The preferred test for a public hearing is whether it is in the public interest. This provision allows the commissioners to determine whether there is too much danger – to reputation or health – to instigate a hearing in public. This test, with its listed caveats, is very properly in the legislation, in conflict with the “exceptional circumstances” clause. The problem could be solved by merely striking out that awkward and problematic clause.
The Opposition is arguing strongly (with some honourable support in other parts of parliament) that suicide is the risk. While there have been tragic cases of this nightmarish outcome in corruption investigations, they are few. One of the noted cases took place when the hearing was to be private. Another would likely have faced police investigation and possible charges if an anti-corruption body did not exist to investigate the circumstances.
We do not grant accused criminals the right to private trial in the criminal courts, and it seems odd to the experts that the matter of corruption should be treated otherwise.
The government and media friends have argued that pork-barrelling is business as usual in politics. This is cynicism of the highest order. There are bodies, structures and systems in place to assess applications for public money. When a government overrides all these to the detriment of the best and most needy applicants primarily for political benefit, this is corruption. It is an utterly different matter from taking care of one’s electorate for the public good and with properly spent public money. To argue otherwise is both disingenuous and disgraceful. The fact that it is argued by the very forces that proclaim themselves the best guardians of taxpayers’ money is one of the most outrageous aspects of their argument. They wasted tens of billions of dollars over the last two elections with slush funds of public money for the purpose. The electorate established that this is as unacceptable to us as it is to the integrity advocates.
The explanatory memorandum to the NACC defines an “accountable authority” as matching the one given in the Public Governance, Performance and Accountability Act (2013) where the definition of the proper use of public resources is defined. According to the act, proper use is “efficient, effective, economical and ethical.” The emphasis on “ethical” should be heartening to the electorate.*
As the legal wonks and their shepherd, Han Aulby, raced from media interviews to being briefed by the AG’s department or briefing the cross-bench and Shadow Attorney-General, the pace took on the feel of a television episode of some thriller where nobody has time to breathe. They hope that the cross-bench, and public sentiment, informed by honourable journalists like David Crowe and Laura Tingle, will make it uncomfortable for the people who forced Dreyfus to include the unwieldy provision.
Whether or not this change is made, Mark Dreyfus’s department, with its plans for an integrated integrity framework, has begun a profoundly important movement to revive good governance in Australia. We owe Dreyfus the time to acknowledge the scope of that mission.
*It was Howard Whitton of the ART and a public sector ethics specialist that noticed this key detail. http://classic.austlii.edu.au/au/legis/cth/num_act/pgpaaa2013432/s8.html#public_resources
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