In 2008, as the first South Australian state political leader to propose an ICAC, I said “sunshine is the best disinfectant”. It was a reference to US Supreme Court judge Louis Brandeis and his 1913 essay titled “What Publicity Can Do”. Brandeis was a champion of the battler and their right to have their views and interests aired in public.
He was a champion of disclosure, transparency and fairness.
His various essays and judgements also point to an understanding of the right to have your reputation protected against those who would sully it for their own cause.
This is the reason why the ICAC Bill I backed in 2008 had protections against the use of an open hearing to throw mud on a person’s reputation with no basis to do so. It’s why courts sometimes are closed and why juries are sometimes asked to leave the courtroom. It’s why we have defamation laws and raft of other balancing provisions.
For some people, the urge, the rush and the impatient need to have all manner of allegations aired publicly is a sign that they have come to a conclusion without examining the evidence.
Let’s take the Oakden matter for example.
The aged care facility was accredited year after year by the Federal Aged Care Accreditation Agency. It passed muster when the Chief Psychiatrist first visited it. And when the Minister for Mental Health became concerned that the complaints about Oakden were not being properly heard, she launched an inquiry. She questioned it, she considered it and she closed it.
Now the media and the Opposition want to trawl over that process, sparking interest from the Independent Commissioner Against Corruption.
Whether the ICAC Commissioner has his hearings in public or private, he will still hear both sides of the story and he will still produce a transparent, open and public report which disclose all. But, in that process, we must be careful that carers, nurses, doctors and administrators aren’t slammed in public only to be exonerated a year later. It is unfair to those people to conduct a public hanging where they have no legal representation and no resources to protect themselves.
Consider this: how would you feel if you were trashed on the front page of the newspapers and the story was later corrected on page 68? Mud sticks and the throwing of mud adds nothing to the fair process of inquiry.
There is sunshine in SA; it’s there courtesy of the existence of the ICAC. It’s there in Premier Weatherill’s proactive disclosure rules and the Freedom of Information laws and more than 300 questions asked in parliament on the Oakden matter.
My position on the Opposition’s rushed efforts yesterday to legislate for an open hearing has been as considered as the position I took in 2008. A media circus doesn’t make for a more effective ICAC – it hinders it.
I am sure Justice Brandeis would agree.
Martin Hamilton-Smith is a former leader of the state Liberal Party in South Australia. He is the Minister for Investment and Trade, Small Business, Defence Industries and Veterans’ Affairs.
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