If the Malcolm Turnbull is really uncertain about whether to support the creation of a national anti-corruption watchdog, he should have a listen to the case for the prosecution.
At the National Press Club on Tuesday, Bill Shorten said Labor supports the creation of a national integrity commission. This was first advocated by the left-wing Australia Institute (it prefers the description “progressive”) and was subsequently embraced by the Greens in federal parliament.
The Australia Institute hosted a national integrity committee that developed a set of design principles for the workings of such an organisation. Labor has essentially embraced this model.
The committee consisted of six former senior members of the judiciary: David Ipp QC, Margaret McMurdo, Stephen Charles QC, Anthony Whealy QC, Paul Stein QC and David Harper QC.
In recent times, a number of these former judges have received soft interviews on the ABC from journalists who support the establishment, at the federal level, of a body like the NSW Independent Commission Against Corruption.
Some members of the Australia Institute group have publicly supported Shorten’s initiative as announced to the National Press Club. The problem is that some of the learned former judges have struggled to state precisely why a national integrity commission is really necessary.
Take Whealy, for example. Interviewed by David Speers on Sky News on Tuesday, he was asked whether “political donations and the impact they may have on a politician … is the sort of thing that you would envisage this body looking at?”
Whealy replied: “Oh yes. It’s certainly what I’d envisage them looking at. But, of course, there’s more to it than that. There’s also big issues like procurement contracts in the Defence Department. Are those contracts always above board? Are people being slipped backhanders? Are their children being taken to Disneyland so they’ll favour a contract?
“I’m not suggesting anything like that happens but that’s what has got to be looked at.”
How about that? Whealy says that he is not suggesting that members of the Defence Department “are being slipped backhanders”. But he favours the establishment of a commission to look at whether something like this might be happening.
McMurdo was no more impressive when interviewed by Sabra Lane on ABC radio’s AM program on Wednesday.
Lane: “What current issues do you think this commission could examine?” McMurdo: “Um, well I guess, there’s um quite a lot of issues that um arise.
“I don’t really want to get terribly deeply into the current political scene. I’d really rather talk about broad principles. But, um you know, the Dastyari um controversy is one that perhaps comes to mind immediately, um.”
It was not a convincing answer. McMurdo and her colleagues want to establish an anti-corruption organisation with substantial powers to address (alleged) current problems. But she does not want to state what the concerns are. Except to mention former Labor senator Sam Dastyari, who resigned from politics on his own volition following criticisms of his relationship with China.
In other words, the only example that McMurdo could evoke to advance her case for a national integrity committee was a matter that was resolved without such a body. Whealy, on the other hand, ran a tickets-for-Disneyland scenario despite the fact that no such act of corruption is known to have occurred.
Even Shorten stated no detailed case for a national integrity commission at the National Press Club. He said: “I’m not putting this policy forward because I’m aware of any corrupt conduct: if I was, I would report it. I’m doing this because I want to restore people’s faith in their representatives and their system of government.”
According to Shorten, the remit of a national integrity commission “would cover the judiciary, it would cover the Commonwealth Public Service, businesses and people who transact with the commonwealth and the governor-general”. This is quite an extraordinary power to give to one unelected commissioner and their two unelected deputies, who would be appointed for a single five-year term.
In recent years two of NSW’s most able premiers — the Liberal Party’s Nick Greiner and Barry O’Farrell — were forced to resign due to the ICAC process. ICAC found Greiner to be effectively corrupt on the flimsiest of evidence. The decision was overturned by the NSW Supreme Court, but not before Greiner was forced to leave politics in 1992.
On April 16, 2014, O’Farrell was caught out failing to remember at an ICAC hearing that he had received a gift of an expensive bottle of Grange wine.
He resigned immediately.
In August last year, ICAC found O’Farrell had a genuine failure of memory and that “there was no intention on Mr O’Farrell’s part to mislead the commission”. ICAC’s eventual finding received little media attention.
However, on April 16, 2014, Fairfax Media journalist Kate McClymont, on ABC TV’s Lateline, used the occasion to accuse O’Farrell of lying and to suggest he had given false and misleading evidence to the commission.
McClymont has never apologised for her false claim. And (the now defunct) Latelinerepeated parts of McClymont’s outburst in the last program celebrating the highlights of its existence.
Journalists are not the only ones to have made much of allegations and innuendo that prevail at ICAC where those accused of wrongdoing are denied traditional legal rights. So have some counsel assisting.
Geoffrey Watson SC used his occasional hyperbolic ICAC appearances to become something of a celebrity. In July 2014, he even did a photo-shoot for The Australian Financial Review Magazine, sitting on a stool in a boxing ring wearing a mouthguard bearing his nickname, Hollywood.
And then there is ICAC’s (failed) attempt to establish that the able crown prosecutor Margaret Cunneen SC was corrupt.
Eventually this was thrown out by the High Court, which ruled that the then ICAC commissioner, Megan Latham, had acted beyond her powers.
An independent inquiry subsequently cleared Cunneen of any wrongdoing.
In NSW, ICAC on occasions has acted in a manner of a kangaroo court.
Its two genuine scalps, one-time NSW Labor Party ministers Eddie Obeid and Ian Macdonald, were eventually convicted of corruption in the traditional courts of law.
But they did not step down due to an ICAC finding.
So far no one has made a convincing case of why Australia needs an ICAC-like body at the national level.
Gerard Henderson is executive director of The Sydney Institute.