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Opinion

Beware politicians defining the meaning of corruption

Opinion

With a federal Labor government committed to a national integrity commission, Morry Bailes revisits the patchy results of state-based corruption agencies and urges caution in allowing parliament to set up its own legal goalposts outside of common law.

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With the election of an ALP government comes the near certainty of a future Federal Integrity Commission.

The former Coalition Government toyed around with the idea for years going back to a period when Christian Porter was Attorney-General but never got anything up. Thus it became an election issue – and for some a hot button one at that.

All states and territories now have some type of standing anti-corruption commission. In a number of states and in the Northern Territory they are called ICAC’s, although in South Australia the ICAC is the Independent Commission Against Corruption rather than Commission. In Western Australia it is the Crime and Corruption Commission, the CCC. In Victoria the IBAC in an acronym for Independent Broad-based Anti-corruption Commission.

The differences are more than just in the name. Each commission functions quite differently, although some are more similar than others. Amongst other differences each has its own particular jurisdiction which is determined by what that State or Territory provides for in its particular enabling legislation.

This leads to the central feature of all standing commissions against corruption: they are all and entirely a parliamentary creation. The parliament creates and breathes life into these standing commissions, and parliament alone. There is not one element of a standing commission against corruption that is owed to the common law or any natural law or convention. They are holus-bolus a thing created by legislation.

Indeed, the very nature of such a commission goes against just about every common law principle in the book. The power to compel witnesses by stripping all vestiges of common privilege away is squarely against the old presumptions contained in the common law as upheld by the courts for centuries, such as the right against self-incrimination and the right to silence.

Further there are countless examples of the abuse of power – usually constituted by acting beyond power – by standing commissions. The courts have intervened time and time again to curtail corruption commissions who have headed off yet again on the wrong tangent. It is sometimes the quality of investigators employed but is also, on more than one occasion, a misunderstanding of powers by commissioners themselves.

The New South Wales example of Cuneen is a classic. Without going into all the facts, Ms Cuneen SC, a former Deputy Senior Crown Prosecutor, was investigated by the NSW ICAC for allegedly giving advice to her son’s girlfriend who had been involved in a serious motor vehicle accident, that was said to amount to corrupt conduct.

The matter made it all the way the High Court, which found in a majority judgement 4:1 that the ICAC had exceeded its authority by misunderstanding and misinterpreting the definition of ‘corrupt conduct’ under the Act. It could fairly be described as an embarrassing mess, but in all these cases is a person who has the prospect of enduring Star Chamber-like interrogations, which some jurisdictions conduct in public.

This gives rise to another critical characteristic of these standing commissions, and that is that they investigate what is defined to be ‘corruption’ by the parliament. So what is and what is not corrupt is first decided by parliament itself. This is the point at which you may begin to realise how meaningless some of these commissions can be, or conversely how intrusive, all determined by the definition accorded to ‘corruption’.

The power to compel witnesses by stripping all vestiges of common privilege away is squarely against the old presumptions contained in the common law as upheld by the courts for centuries

Two examples illustrate the extremes. In Victoria, corruption has a relatively rarified definition, sufficient to mean that the then opposition leader could in 2017 enjoy the infamous ‘Mobster Lobster’ lunch with a person earlier alleged by the Victoria Police to be a mafia boss. He could then refer himself to the IBAC presumably in the knowledge that  find it had no power to investigate because the conduct did not reach the required threshold to constitute corruption, as it duly found. Mr Guy is back as leader incidentally, but one suspects he may have sworn off lobster.

Compare that to the now disbanded Crime and Misconduct Commission in Queensland. In its final throes it investigated Gold Coast coppers on the beat who were offered half-price hamburgers at the local burger joint, all because that fitted within a definition of potential misconduct under the Act. You may think that if the Commissioner of Police didn’t want the hamburger proprietor currying favour with police by offering half-price hamburgers they might be capable of giving that direction to the troops, but no, in swooped the Crime and Misconduct Commission to investigate ‘burger-gate’.

So turning to the Commonwealth, and you may ask yourself: what the unholy hurry is to create another of these statutory beasts to unleash on the unsuspecting public officers of the Commonwealth?

What is and what is not corrupt is first decided by parliament itself. This is the point at which you may begin to realise how meaningless some of these commissions can be

Corruption is a problem. It must be tackled or it erodes society and all of its organs; parliament, executive government, the courts and extending its tentacles into every level of governance. It is the ultimate disabler of successful, transparent, democratic rule. Any economic basket case of a country can often trace the origins of its failure back to a tolerance of corruption. So the argument goes, if it’s good enough for the states and territories, it’s good enough for the Commonwealth, and that is an argument that contains some attraction.

However, having seen our state parliament recently and unanimously cut the wings of our own ICAC Act and its jurisdiction, the message to the federal ALP government is to have a care what it is that it creates. Comparisons with Frankenstein’s monster are probably a little exaggerated, however the concept is the same. Once created and set loose it is not a thing easily contained if the ingredients were wrong, starting with the definition of what is said to constitute corrupt conduct.

There are significant questions about who is to be defined as a public office, who is in and who is out, with critical safeguards required to guarantee the continued independence of Commonwealth judges. Moreover there is the fraught question of whether hearings are to be public or private.

These head up a long list of elements that must  be debated by parliament and gotten right. As with every issue blithely embraced by some in the electorate, the full ramifications are not always understood, nor all of the complexities involved to successfully translate such an idea into a workable model, fit for purpose. Getting a sound federal integrity commission off the ground is no small task but this government ran on an unconditional undertaking to do so.

The devil of course is always in the detail, let no one tell you otherwise, and it is the detail we await.

When South Australia enacted our ICAC, we thought enough water had gone under the bridge to get it right. Nothing was further from the truth as our parliament has just demonstrated. In the meantime, don’t say at a federal level that you weren’t warned.

Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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