Did you hear the one about Peter Dutton and transparency? It goes like this.
At a media conference this week, the new leader of the opposition was asked about his support for a federal independent commission against corruption. Here’s what he said, with Crikey sound effects added:
“I’m a strong supporter of the ICAC.” DING!
“I believe in transparency.” DING! “I always have.” DING!
The level of “scrutiny” in Queensland since the 1989 Fitzgerald Inquiry had stood the state “in good stead”, he said. But he added, “That’s not the case in every state around the country.” GROAN. “I think there are issues…” GROAN. “…the commissions have worked with various success.” BA-BOW.
DINGS first. As Minister for Home Affairs, Dutton controlled a ministry of secrets. It includes the Australian Federal Police, the Australian Border Force and ASIO — agencies that operate with little or no public transparency. Home Affairs built a reputation as being the least prepared to answer media questions. Dutton also sat in a cabinet that came up with the Morrison government’s version of an ICAC, the Commonwealth Integrity Commission (CIC), which was panned by judicial experts at the Centre for Public Integrity as the weakest corruption body in the land. An analysis by the centre concluded that the only supporter of the CIC was the Morrison government itself.
GROANS: Dutton’s reference to state government corruption commissions having “various success” is a sure pointer that he, like Morrison before him, does not support the NSW ICAC model. Dutton failed to answer a question that raised that exact issue.
BA-BOW: Here we go again. Dutton’s version of transparency likely means no public hearings that might leave the reputations of politicians in tatters. Dutton also reverted to politics as usual by immediately pivoting from questions on his preferred ICAC model to launch an attack on “this Albanese government” and Labor’s “unholy alliance” with unions such as the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the Electrical Trades Union (ETU) and the Maritime Union of Australia (MUA).
So why does it matter what Dutton thinks, given the Albanese government has a majority and the new independents were elected on a platform of integrity in government? And so what if Dutton decides to politicise the issue?
According to Gary Sturgess, architect of the NSW ICAC, it is important that the government gains broad parliamentary support, including from the opposition, on the shape of a new federal integrity body.
“You need more than 50% plus one,” he told Crikey. “The reason is that you want intergenerational commitment to whatever body it is.”
There is also the need for bipartisan support for a commissioner who is agreeable to all parties. The Centre for Public Integrity recommends one chief commissioner and two assistant commissioners be selected by a cross-party parliamentary committee.
Backing his argument, Sturgess points to the birth of the NSW ICAC in 1988 when the Nick Greiner Liberal government was supported by the Labor opposition led by Bob Carr.
“If there isn’t bipartisan support then it is always possible that a new government cuts its funding or reduces its powers,” Sturgess said.
“That means the Albanese government and the opposition should engage in good faith discussions. Public hearings might be on the table, but there may be compromises that can be made without giving up public hearings entirely.
“I also recognise the harm that can be wrongly done to reputations if public hearings are poorly managed.”
In a pointer to what else could be up for bargain, the Morrison government’s proposed integrity commission meant it was unable to commence its own independent inquiries into government corruption and would not investigate any past scandals.
Let the games begin
Anthony Albanese promised before the election that Labor would legislate what it called a “powerful, transparent and independent national Anti-Corruption Commission” by the end of the year. It would have the “independence, resources and powers of a standing Royal Commission”.
According to Labor’s election manifesto, its design principles would include:
- discretion to commence inquiries into serious and systemic corruption on its own initiative or in response to referrals, including from whistleblowers and complaints from the public
- power to investigate allegations of serious and systemic corruption that occurred before or after its establishment
- power to hold public hearings where the commission determines it is in the public interest to do so
- the ability to make findings of fact, including a finding of corrupt conduct, but not to make determinations of criminal liability (possible criminal conduct would be referred to the Australian Federal Police or the Commonwealth Department of Public Prosecutions)
- operate with procedural fairness with it being subject to judicial review.
What’s in, what’s out? And what is corrupt behaviour?
The scope of corruption has been a vexed question for anti-corruption bodies.
Speaking during the election campaign, now Attorney-General Mark Dreyfus said corruption in government was “a much broader concept” than what is captured under the criminal law.
“That’s why you need these anti-corruption commissions,” he said. The Coalition model, by contrast, was confined to “criminal” matters.
Dreyfus took issue with Morrison’s argument that government grants programs, such as sports rorts, should be exempt from investigation because, as Morrison put it, it would mean handing over power to “faceless officials”, making Australia a “public autocracy”.
The A-G’s view? “He’s saying he doesn’t want scrutiny. He doesn’t want accountability. He doesn’t want an anti-corruption commission to be telling him that he’s behaved in a corrupt manner,” Dreyfus told the ABC’s Raf Epstein at the time.
Former NSW premier Gladys Berejiklian defended her own government’s pork-barrelling on the grounds it was “not unique” to her government.
“It’s not something the community likes,” she said at the time of ICAC investigations touching on her relationship with former Wagga MP Daryl Maguire. Berejiklian, however, added the key rider that it was “not an illegal practice”.
At the same time, Sturgess told Crikey, an integrity commission had to avoid becoming “a morals tribunal”, which was the risk when ministerial codes of conduct were included in the legislation.
“Ministerial codes are about much more than corruption and integrity — they are a set of rules designed so that a group of colleagues who don’t always agree with one another can continue to work cooperatively and trust one another. Overlaying an anti-corruption body on that can result in a great deal of misunderstanding,” he said.
If a new federal commission is empowered to investigate pork-barrelling and to look retrospectively, then there is the prospect that a number of opposition MP’s might find themselves under the spotlight.
Investigations by the Australian National Audit Office (ANAO) have revealed skewed funding to Coalition or marginal seats under programs signed off by Alan Tudge (the so-called car park rorts), Bridget McKenzie (sports rorts), and Michael McCormack (the Regional Jobs and Investments scheme). The ANAO found that grants signed off by Peter Dutton under the Safer Communities Fund before the 2019 election were “not appropriately informed by departmental briefings”, with more than half delivered without a “clear basis for the decision”.
Crikey has compiled a list of possible referrals here.
With so much of the past hanging over the heads of the opposition, there is much at stake in the precise terms of the commission.
Gary Sturgess says Parliament should not limit the scope of an integrity commission to look backwards, given it can take time for allegations and evidence to emerge. Labor policy is that it should be retrospective too.
But to what extent will the opposition be prepared to cooperate in a process that may hit them hard — even if it is in the national interest?
As an old Queensland copper from the post-Fitzgerald Inquiry era, Peter Dutton will be acutely aware of how bad things can look under the glare of an impartial, thorough and public inquiry.
