I suggested in earlier pieces on IA, using the example of the British Tories pursuit of a prominent Labour Party figure, T. Dan Smith, that accusations of corruption often further a political agenda; and further that different ideas of democracy and of corruption itself often get in the way of clear analysis.
Where does this leave the case for a Federal version of ICAC? The main point is that we should not expect too much from whatever is finally established. The I (for ‘Independent’, in the english-language title of Hong Kong’s ICAC) aimed to assure the people of Hong Kong that ICAC was not part of HK’s regular civil service and, in particular, that it was independent of HK police. Yet when the NSW Liberals picked up the ICAC title in the late ’80s, the I indicated little but the word ‘independent’ itself, which functions in Australian political debate as an obstacle to critical thinking. What can you say when a Coalition Government appeals to a decision of the independent umpire – in this case The Fair work Commission whose members were appointed by a Labor Government – to support its decision to cut penalty rates?
To be sure, the NSW & SA’s ICACs are not the only models proposed for attacking corruption at a federal level. In practice, calls for a Federal ICAC reflect more the magic of the I-word than any real desire to model the desired Federal arrangement on the specifics of NSW’s, SA’s or HK’s ICACs.
A Senate select committee is looking into the possibility of forming a National Integrity Commission, where the word integrity indicates that the focus would be more on promoting norms of good conduct than simply penalising the bad. The ALP has already proposed such a Commission, drawing on a detailed proposal from the Australia Institute, which is itself based on the work of a National Integrity Committee consisting of former senior judges and corruption fighters. Its design principles
“include the need for the commission to be an independent and well-resourced agency, with a broad jurisdiction and the strong investigative powers of a Royal Commission, including the ability to hold public hearings.”
Here, too, we see the magic word ‘independent’ but there is relatively little detail on how the desired independence and resources required to make it meaningful are to be secured. An NIC Briefing Paper from November 2017 notes that “NSW ICAC has faced funding cuts over consecutive years, resulting in the loss of 17 staff including an entire investigative team. This occurred after ICAC exposed corruption in political donations involving ten members of the Liberal Party. The NSW Public Service Association has said that the funding cuts are an attempt by the NSW Government to diminish scrutiny. Former NSW DPP Nicholas Cowdery AM QC has raised concerns about the resources made available to NSW ICAC and a future federal anti-corruption commission:
NSW ICAC has been faced this year with a funding cut. It is an easy way for government to impair the effectiveness of such a body and steps would need to be taken to ensure that adequate resources continued to be allocated to a national integrity commission.”
Sounds good – but can we seriously expect a Commonwealth Government or Federal Parliament to actually ensure independence and sufficient funding? Starting with independence, the AI proposal envisages that the Integrity Commission will be an independent statutory body (the statutory character ensuring that it cannot easily be shut down by a Government) and that it will “be governed by one Chief Commissioner and two Deputy Commissioners, appointed by the Minister on recommendations from a bipartisan Parliamentary committee”
Here independence seems to be interpreted as meaning little more than non-partisan, suggesting that a Committee to appoint the first Commissioner/ President of the Commission would have members drawn from the Coalition, ALP, Greens and possibly other parties. The alternative to an appointment committee of pollies would be a committee of the great and the good, which is unlikely to include readers of or contributors to IA & only a few from the IPA.
To ensure Commissioners’ independence, an independent process of appointment would have to be complemented by provisions to protect Commissioners from arbitrary dismissal. Accordingly, there are likely to be provisions making it difficult for the Government to dismiss Commissioners, as there normally are for Senior Judges and the President of the Australian Human Rights Commission. The Coalition clearly hated Gillian Triggs while she held this last position, but could find no easy way to get rid of her. Even so, continual harassment by senior political figures would still have taken its toll: security of tenure is essential but it is no defense against bullying.
Once we have sorted the question of independence or given up on it, first question to be addressed is how can the new body’s budget to be secured. Nicolas Cowdery’s point, noted earlier, about the need to secure resources for a Federal ICAC or Integrity Commission, is an important one. Funding cuts, insufficient allowance for inflation & efficiency dividends are easy ways for Governments to limit the effectiveness of independent agencies, and it would be foolish to imagine that future Governments will hesitate to use them.