Anti-corruption commissions (ICAC)

Author: Eric Withnall

The Independent Commission Against Corruption (‘ICAC’), as a conceptual part of the Australian legal system, poses an existential threat to corrupt politicians and public servants, and those that deal with them, by redefining the judicial rules of engagement when it comes to sophisticated public graft. Described as a ‘permanent Royal Commission’, a model ICAC can result in unprecedented revelations of corruption at the highest levels of government – albeit at the expense of the legal protections afforded to every Australian by the justice system.

Although they are relatively recent additions to our legal system, bodies like ICAC are not at odds with our British legal traditions. Critics of ICAC like to compare it pejoratively (and melodramatically) to the Star Chamber, a special inquisitorial court existing in Britain from the 15th century onwards that was formed to pursue the previously-untouchable elite political class. Its unprecedented powers to compel testimony from the nobility and operate in secret eventually caused it to become a tool of corruption itself by the 1600s, when it was finally dissolved. Aside from making major contributions to the common law (by giving us the legal concepts of perjury and conspiracy, among others), it became the fundamental blueprint for a range of supra-judicial bodies in our history that have succeeded in achieving justice where the ‘vanilla’ justice system has failed.

Its modern successors operate with similar autonomy, and from a purely theoretical perspective, operate with the same risks of injustice. The Australian Crime Commission (and its merged successor, the Australian Criminal Intelligence Commission) undoubtedly operates in the Northern Territory and exercises those same coercive powers, although any person who even discloses that they have been summoned before it can face 2 years in prison. However, the key innovation that makes these extraordinary measures consistent with our modern liberal democracy is the prohibition on using coerced testimony from a Commission as evidence in a judicial trial. This condition attaches to most supra-judicial bodies in Australia, including the various forms of ICAC around the country.

Royal Commissions (and their equivalents), despite the occasional one being described as a ‘feel-good community talk-fest’, can also have a devastating effect on corruption and topple pyramids: the Fitzgerald Inquiry brought an end to one of Australia’s most controversial state governments in a catastrophic fashion, and one that ultimately ushered in a country-wide era of accountability reforms and structural change. The Wood Commission in New South Wales exposed hundreds of corrupt police officers and revealed a systemic culture of cover-up and active criminality – it also led directly to the formation of the Police Integrity Commission, an ICAC sibling that, at its peak (and in terms of demonstrated independence and efficacy), far outstripped the awkward amalgam of the Ombudsman and the Ethical Professional Standards Command of NT Police we have now when it comes to the investigation of serious Police misconduct.

These secret investigative powers do not sit easily with the concept of individual rights that underpins our criminal justice system, but that does little to dampen their popular appeal when they publicly take a prized scalp. When a significant portion of the country feels let down by the criminal justice system, and perceives a lack of fairness in government process generally, the more spectacular triumphs of ICAC allow many to feel a sense of shared ownership in the justice system. Operations Creedo and Spicer, where the New South Wales ICAC brought about the end of Barry O’Farrell as Premier, exposed an extensive and surprisingly bipartisan network of influence peddlers, tender whisperers, and corrupt wheeler-dealers who used the privileges of parliamentary service to unashamedly advance their own interests – to the tune of millions of dollars.

Most other state governments, unsurprisingly, have been reluctant to go to the same lengths to ensure their probity – the various ICAC clones operating around the country do not have the same remit or success rate of the original, and their hearings are usually conducted in secret. For state governments, the great fear is that the watchdog becomes an uncontrollable slavering monster: indiscriminately raking at the ranks of the senior public service and the parliament itself. You might catch a few bad eggs, they say, but you’ve needlessly ruined the careers of competent public servants over trivial misconduct in the process. Accordingly, there are varying levels of reluctance around the country to accept the major reform that comes with an ICAC; and although the establishment of an ICAC usually follows great public pressure, that pressure does not necessarily translate into a powerful or effective entity.

The ICACs that crucify mid-level public servants for minor peccadilloes (like Victoria’s IBAC, a notorious “toothless tiger”) might net state governments a few juicy press releases and transparency brownie points, but they do little to change the way vested interests influence law-making and administrative decision-making on a major economic scale. If the law imposes no requirement that government offer tenders on a fair and open basis, no investigator (except, perhaps, for a newspaper) will be able to make a dent in collusive tendering and bias in procurement. If the law does not restrict property developers from making donations to political parties, an ICAC will have no power to stop them.

Of course, when it comes to laws, there is no rule against copying and pasting – but we must make sure that any ICAC comes with broader accountability reforms. If we take a plodding approach and copy another state’s model wholesale, all we are guaranteeing is that the result will not reflect the unique conditions experienced in the Territory, and that it will be more ill-fitting than its original implementation – especially when the appropriate offences do not exist in the Territory.  Although Commissioner Martin’s recommendations draw from the successes and failures of the various ICACs around the country, the scope of the inquiry did not permit an examination of the wider probity reforms that allow ICACs to be so good at eliminating corruption. When the Stella Maris inquiry was asked to consider whether corrupt conduct had occurred, Commissioner Lawler had no choice but to recognize that “there is no statutory definition of corrupt conduct in the Territory”.

It is depressingly easy to mistake the appearance of justice ‘being seen to be done’ for the actual sight of justice being done, and it would be a shame if the Territory was led down the path to an opaque and incompetent ICAC. Similarly, a Territory ICAC would be severely hindered, and relatively useless compared to the agencies that already exist in the Territory, if our laws do not recognize sophisticated political graft as crime. This level of structural reform will inevitably be difficult in a place like the NT, but it will only get harder as time goes on – and until a Territory Government takes the bold step, we will needlessly lag behind the best jurisdictions in the country.

*Image courtesy Corruption Watch

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