It would be reasonable and fair to consider carefully the Weatherill Government’s rationale for retaining a veil of secrecy over the Independent Commission Against Corruption’s Oakden investigation.
But unfortunately, they never bothered to provide a rationale.
The Liberals yesterday moved to bring on debate on a bill that would allow Bruce Lander to hold public hearings into matters involving potential maladministration – such as the Oakden scandal.
It is a reform the Commissioner himself has asked for, and one he considers essential to “protect the integrity” of his investigation.
Moreover, it is not a new request.
It was first flagged in his damning report into the Gillman land deal.
“My experience in conducting this inquiry has caused me to consider whether I should recommend to Parliament an additional measure with respect to such investigations… that is, whether I should have the power to conduct an inquiry into potential maladministration in public administration in public, if such a public inquiry was in the public interest,” he wrote (somewhat inelegantly) at the time.
“In my opinion, the ICAC should be given that discretion… an investigation into maladministration in public administration will require me to make findings in respect of the conduct of a public officer or the practices, policies or procedures of a public authority.
“There will be occasion where, as in this case, there is a significant public interest in the subject matter of the inquiry.
“In those circumstances, there is a strong argument in support of permitting public scrutiny of the evidence given, the submissions made and the procedure undertaken.”
Given that the parliament had already rejected that request, the timing of the Opposition’s renewed push for transparency can be seen as nakedly political.
But that doesn’t make it any less important.
It was a purely political gesture, too, inasmuch as the Government was always going to use its numbers – with the help of sympathetic crossbenchers – to kill off the bid for public hearings.
From the Liberals’ perspective, then, the point was not to pass the bill but to publicly emphasise Labor’s refusal to do so.
But moreover, the accompanying debate gave both sides the opportunity to spell out their rationale; if not to convince, at least to enlighten.
And based on the evidence it provided, Labor has no rationale for blocking the ICAC’s request.
The Government only deigned to put up one speaker to defend its position yesterday – Attorney-General John Rau.
Whether by chance or design, he managed to hit almost every wrong note.
He cited previous opposition to public hearings by Liberals Rob Lucas and Isobel Redmond (who as Liberal leader published a policy document pledging to increase the ICAC’s transparency) – as though that previous opposition alone was a decisive reason for ignoring Lander’s current request.
He went to great lengths to again restate why he considered the ICAC inquiry into Oakden to be an Ombudsman’s inquiry – despite Lander repeatedly noting this week that he took strong issue with that characterisation, which he believed could be calculated to undermine his investigation.
And then the coup de grace. Having evidently flaunted his disdain for Lander’s request, Rau then noted that since the ICAC investigation was, indeed, an Ombudsman’s inquiry, it was bound by the same strictures thereof – which thus forbade public hearings.
In his uniquely convolutedly legalese take on political spin, Rau proudly pointed out that the relevant section of the ICAC legislation held that when the commissioner decides to “exercise the powers of an inquiry agency in respect of a matter raising potential issues of misconduct or maladministration in public administration”, he then “has all the powers of the agency, and is bound by any statutory provisions governing the exercise of those powers as if the Commissioner constituted the agency”.
“So that we are really clear,” he triumphantly concluded: “As a matter of law the commissioner remains in title the Independent Commissioner Against Corruption: that is beyond dispute.
“However, inasmuch as the commissioner is exercising a power pursuant to section 36A, I repeat, the commissioner has all the powers of the agency – in this case, the Ombudsman – and is bound by any statutory provisions governing the exercise of those powers as if the commissioner constituted the agency.”
He then rested his case with a quote from the Ombudsman Act, which holds that “every investigation under this act must be conducted in private”.
So in other words, Labor’s entire argument against holding ICAC maladministration hearings in public is that it is currently not allowed under law.
Which is all very well. Except that they were debating a bill that was before parliament that sought to change the law!
And at no point did Rau make a legal, moral or even remotely sensible case as to why that bill should be voted down.
Let’s be clear: this is not a fight the Government can win.
Now, the Attorney may well believe he has solid legal reasons for continuing to defy Lander on his characterisation of the investigation as an Ombudsman’s inquiry.
But that is neither here nor there.
Because Lander has asked him to stop doing it, and warned that by persisting he is undermining the authority of the ICAC that he himself established.
And yet he has refused to do so.
Taking issue with Opposition legislation is all in a day’s work in politics.
But, nine months out from an election, deliberately putting yourself at odds with the ICAC commissioner you yourself appointed – that defies any logic.
Let’s be clear: this is not a fight the Government can win.
It was the Government, after all, that chose Lander to be the state’s first anti-corruption watchdog, that elevated the former federal court judge to a position deemed beyond reproach.
Read the interview transcripts with the key players in Lander’s Gillman review: it’s conceivable that had those interviews been held before a packed media gallery, the Government would have sustained far more damage – and deservedly so.
But that’s no rationale for clipping the Commissioner’s wings.
If nothing else yesterday, Labor had a chance to make a concerted case for denying its own anti-corruption watchdog a reform he deems essential to maintaining public confidence.
And besides precedent and the status quo, it put up no point of principle for doing so.
Which inevitably begs a disturbing question.
If their actions were not to protect a principle… what are they trying to protect?
Tom Richardson is a senior reporter at InDaily.
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