This article BY ART member David Harper, appealing for a “Federal ICAC”, appeared in the Sydney Morning Herald https://www.smh.com.au/politics/federal/as-politicians-resist-a-federal-icac-australia-becomes-more-corrupt-20181112-p50fib.html
General propositions – for example, that public office is a public trust – can sometimes encapsulate profound truths. It is a measure of the malaise of Western democracies that for many in public life the notion that they hold positions of trust has never penetrated their conception of what their over-riding purpose should be.
Australia has not escaped the malaise. In 2012 we ranked 7th in Transparency International’s global corruption index. We are now 13th. The lack of a federal anti-corruption agency remains a reason why we have never come close to being corruption-free. In the absence of effective countervailing mechanisms, corruption feeds upon itself. In much of the world it has become a monster consuming society as a whole.
Power tends to corrupt. When power is coupled with greed – some of us eagerly embrace both – corruption will follow. Corruption, and attempts to generate it, corrode the public good.
Until recently, federal politicians have been reluctant to fully acknowledge these truths. They are not entirely to be blamed. Their reluctance springs in part from the fear that an effective anti-corruption authority will expose them to the collateral damage of baseless, politically inspired, allegations of wrongdoing. When this happens, the careers of politicians of integrity may be unjustly ruined and, by deterring good people from entering politics, democracy damaged.
Neither consequence is tolerable. The design of any anti-corruption commission must therefore incorporate measures to ensure that the innocent do not become its victims but, once incorporated, the responsibility of creating effective mechanisms for combating the cancer of corruption becomes unavoidable.
As a result of past irresolution, corruption has gone undetected. Corruption is the especial domain of intelligent, well-connected offenders skilled at concealing their misbehaviour while operating within spheres familiar to them but not necessarily familiar to the diverse and not always co-ordinated federal agencies presently entrusted with their detection. Many of the investigative powers granted by legislation to the Australian Federal Police cannot be invoked until the police are in a position to lay a criminal charge. There can be no doubt that, as a result, the AFP has failed to uncover serious corruption: the illegal sales of Australian wheat to Saddam Hussein contrary to UN imposed, and Australian supported, sanctions against Iraq is an example.
The Australian Commission for Law Enforcement Integrity cannot investigate corrupt behaviour which is unreported. In any event, ACLEI has no jurisdiction over members of parliament, or their staff, or the judiciary, or at least half of the public sector, or third parties attempting improperly to influence public administration.
Undetected corruption enables politicians to claim that it does not exist. That is a myth. In NSW, Victoria, Western Australia and Queensland, extraordinarily serious instances of corruption have been unearthed by royal commissions or broad-based anti-corruption authorities. A survey by the Victorian Independent Broad-based Anti-corruption Commission found that 40 per cent of past, present and prospective suppliers to government agencies believed corruption in public sector procurement to be either a major or moderate problem.
Corruption in the states is certain to be replicated federally and if procurement in the states is a problem, federal procurement is necessarily fraught. In 2009, the Defence Department alone sought tenders for more than $45 billion. When money of this magnitude meets power and greed, as inevitably it will, corruption or attempts to corrupt are the result.
The case for a carefully designed National Integrity Commission is irrefutable. It must have the investigative powers of a royal commission, but must concentrate on serious or systemic corruption. It must be managed by commissioners of absolute integrity and independence who will serve for fixed five-year terms without the temptation of any further appointment. It must be overseen by Parliament and by an independent inspectorate. It must be appropriately funded and staffed. It should have the power to make findings of fact, but not of corrupt conduct – still less of guilt. The jurisdiction to make those findings must remain with the criminal courts.
And it must have the power to hold public hearings. Star chambers are unacceptable. Public hearings vindicate the innocent while exposing the corrupt. They also give notice to witnesses who might otherwise never come forward. Nevertheless, private hearings are appropriate when considerations such as the risk of damage to private reputation outweigh the public interest in transparency.
Only an anti-corruption commission with these powers will be effective. A weak anti-corruption agency would be the antithesis of what is urgently required.
David Harper is a former Court of Appeals justice at the Supreme Court of Victoria.