Speech: The need for a Federal ICAC from a civil liberties perspective

A transcript of NSWCCL President Pauline Wright's speech to the National Press Council on 1 December 2021.

As a civil liberties organisation, NSWCCL has in the past expressed serious reservations about anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. But we have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia. If the public interest is to be protected against the corrosive effects of serious lapses in integrity and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers – albeit with proper constraints and safeguards – is both necessary and proportionate.

Corruption undermines the integrity of our political system. It distorts the policy-making process, diverts resources from public good objectives and undermines public trust in our politicians, governing institutions and public administration. Corruption harms everyone. It breeds inequality and injustice and undermines the ability of governments and people to fulfil their potential to achieve the common good, especially in challenging times.

Integrity and accountability are central to maintaining public trust and confidence in all levels of government and its agencies. They are fundamental to the delivery of citizens’ expectations and aspirations for Australia to be a fair, prosperous and ethical society. In 2017, CCL identified the urgent need for a broad-based national anti-corruption agency and called upon the Government to establish it without delay. As Serena Lillywhite has indicated, a more transparent and accountable public sector would improve public trust and confidence in the government, which has been in decline.

What should the scope be?

What do we expect of our politicians? It is essential that our leaders and their agencies act for the good of the public – that they act in the public interest and not in their own private or party interests. If there is evidence that a politician or federal bureaucrat has committed a criminal act, then the criminal justice system suffices. What is lacking is a body that can investigate activities that don’t necessarily amount to crimes – we expect more of our federal leaders than merely not being criminals!

Surely Australians would want our commission to investigate the scandals that have plagued Australian politics? The context and examples given by Serena Lillywhite and Geoffrey Watson are pertinent and underscore the need for a Federal ICAC. But under the Coalition Government’s Commonwealth Integrity model, none of those scandals – not the car parks nor the sports rorts affair, neither the Nimrod Resources nor the Paladin deal would be investigated.

Under the Government’s model, investigations can’t even begin unless a high bar is reached of reasonable suspicion of one of the specifically defined crimes. The state anti-corruption commissions’ experiences demonstrate that evidence of corruption is typically unveiled during investigations themselves (based on credible allegations).So, if the conduct doesn’t meet that high bar, even if there were clear and compelling prima facie evidence of code of conduct breaches or of other corrupt behaviour, the Commission would have no power even to begin an investigation. Such a limited scope would be unconscionable. While criminal conduct should, naturally, be a priority, the commission should also be able to investigate other serious forms of misconduct. For example, links between financial contributions and political favours should be explored even if an improper motive – required to meet the criminal threshold – can’t yet be established.

What should the model be?

The flaws in the Government’s proposed model include an artificial division between matters involving law enforcement agencies (where NSW ICAC-type procedures would apply and in which extended ACLEI functions would exist) and public sector entities, including politicians.

This would see the public sector and politicians held to a less exacting standard and:

  • whistle-blowers and the public would be unable to initiate consideration of an inquiry,
  • own-motion inquiries could not be initiated,
  • no public hearings could be conducted,
  • no findings of corruption could be made, and
  • no reports could be made public.

Any fair and robust national integrity commission would hold everyone to the same high standards.

Such a commission should:

  • have jurisdiction across the totality of national public administration
  • have the power to investigate conduct by a person not a public official when the corrupt conduct will have an adverse effect on public administration, allowing investigation of those who seek to unduly influence public decision-making.
  • have the power to hold public hearings and issue public reports where it is in the public interest to do so. The decision to exercise this power in individual investigations should be decided based on public interest and fairness criteria similar to those in section 31 of the ICAC Act (1988) NSW.
  • It should have the power to investigate without first reaching an evidentiary threshold – the appropriate function of an investigation is to find evidence to determine whether any misconduct has occurred.
  • It should be able to commence own-motion and third-party investigations.
  • It should be able to conduct its investigations with the same powers as a royal commission to hold compulsory hearings (both private and public), conduct public inquiries and make public reports wherever it is in the public interest to do so.
  • It should be able to make findings of fact, to be referred to the Director of Public Prosecutions or other enforcement agencies for consideration for prosecution in criminal cases.
  • It should be able to make other findings of fact, and issue enforceable recommendations.

Individuals’ civil liberties

Several civil liberties have to be considered in this context, including:

  • the presumption of innocence,
  • the right to a fair trial,
  • a person’s right not to self-incriminate,
  • the right to equal treatment under the law and due process,
  • the protection of legal professional privilege, and
  • the right to not be defamed.

An appropriate model will protect these fundamental rights, as does the model proposed by Independent MP Helen Haines, for example. A serious tension exists between the potential for unfair reputational damage for individuals being publicly investigated without the protection of a fair trial before a court, versus the undoubted public good that flows from investigation and exposure of corruption through open hearings. While hearings should generally be held in private, public hearings should occur where the public interest demands it.

CCL considers that ICAC’s public hearings have overwhelmingly been of public benefit, providing proper transparency and allowing public scrutiny of part of its operations. They have also exposed corruption in NSW and put pressure on Governments to reform. Public hearings ensure proceedings are not cloaked in secrecy and increase public trust. Widespread corruption has been uncovered by inquiries dating back to the 1980’s Fitzgerald inquiry investigating the Queensland police. This led to due resignations and imprisonment of corrupt former ministers and officials. There has been criticism of NSW ICAC’s use of public hearings, including from the Prime Minister over the treatment former NSW Premier Gladys Berejiklian. CCL cannot agree with those criticisms. This was not an inquiry into the former Premier’s personal relationship with a man – it was an inquiry that went to the heart of political integrity, considering whether in wielding her substantial powers as a politician she:

  • “breached public trust by exercising public functions in circumstances where she was in a position of conflict between her public duties and her private interest”,
  • engaged in conduct that “constituted or involved the partial exercise of any of her official functions” in connection with grant funding,
  • conduct that “constituted or involved the dishonest or partial exercise of any of her official functions and/or a breach of public trust by refusing to exercise her duty” to report matter to ICAC, or
  • conduct that “was liable to allow or encourage the occurrence of corrupt conduct by Mr Maguire”.

These are all proper matters for an anti-corruption body to consider. Ms Berejiklian was treated respectfully as a witness to the inquiry and asked proper questions. As former CCL President and former NSW DPP Nicholas Cowdery said this week: “An assessment of Berejiklian’s experience of ICAC provides no basis, as the Prime Minister asserts, for withholding a federal commission or designing one that is intended to prevent political corruption from being exposed, as the Government would have it.”

Where to from here?

  • The Government should take action to establish a broad-based Federal Integrity Commission as quickly as possible
  • Australia needs stronger freedom of information and whistle-blower protection laws and a significant reduction of current secrecy laws and provisions relating to public administration are integral to a credible and effective national anti-corruption strategy
  • Further work through COAG to develop a comprehensive national framework and strategy to address corruption and assess the nature, extent and impact of corruption in Australia is essential. However, this ongoing project should not delay the threshold decision to establish a broad based national anti-corruption agency.