Strong federal integrity commission requires public hearings

Centre for Public Integrity

Written by Centre for Public Integrity Board Member Stephen Charles AO QC for Pearls and Irritations on Oct 12 2021

The Coalition parliamentarians who don’t want a federal integrity commission to hold public hearings are among the very people that should be required to answer questions from an integrity commission..

NSW’s Independent Commission Against Corruption (ICAC) was established by Nick Greiner as premier of New South Wales in 1988. NSW was then riddled with corruption. In the second reading speech, Greiner said that he was appalled by the reputation NSW had acquired around the country and overseas. He continued:

“In recent years, in NSW we have seen a minister of the Crown jailed for bribery; an inquiry into a second, and indeed a third, former minister for alleged corruption; the former chief stipendiary magistrate jailed for perverting the course of justice; a former commissioner of police in the courts on a criminal charge; the former deputy commissioner of police charged with corruption…”

Greiner stressed that ICAC would not be a crime commission, but would have the “very specific purpose … to prevent corruption and enhance integrity in the public sector”.

ICAC has had many successes in the decades since, particularly in the municipal area and in dealing with politicians receiving donations from developers. It has repeatedly been congratulated and thanked by Liberal premiers for the good work it has done. It has made one serious mistake, when an ICAC commissioner decided to investigate the actions of Margaret Cunneen SC.

The event in question, the giving of advice to a family member as to how to avoid taking a breath test, was never an appropriate matter for investigation.

The decision to investigate the premier, Gladys Berejiklian has now resulted in a torrent of hostility, and the claim that ICAC has brought down three good premiers, and destroyed many reputations.

The first, Greiner himself, wanted to secure his party’s majority in Parliament by inducing an independent member, Terry Metherell, to resign his seat. The allegation against the premier was that he had bribed Metherell to resign by offering him a senior position in the Environment Protection Authority which had not been advertised, and without merit selection. Metherell did resign, was appointed to the EPA. position and at the resulting by-election, the seat was won by a Liberal.

As expected there was great public hostility to the process, and Parliament referred the issue to the ICAC for consideration. The ICAC commissioner found that the premier and another had engaged in corrupt conduct. The premier then resigned. An appeal was later brought to the NSW Court of Appeal and, by a majority, the ICAC finding was overturned.

The court’s decision has since been vigorously attacked by administrative lawyers. And Chief Justice Murray Gleeson in his judgment stated that what the premier had done had left him “in a position where there was a conflict between duty and interest.”

Greiner resigned of his own choice. It would be absurd to blame the ICAC for his decision. There was already great hostility in the community to the “clever” political trick that had led to the Coalition securing its Parliamentary majority. But Greiner now sits on many boards and is an acknowledged leader in both the political and business communities. His reputation is completely untarnished.

The second premier, Barry O’Farrell, was a witness in an ICAC proceeding in which he was not himself the subject of any allegation. In evidence he mistakenly swore that he had not received the gift of a bottle of wine. Later that day he realised his evidence was wrong, and that he had received a bottle of Grange Hermitage. He immediately resigned in embarrassment.

O’Farrell’s embarrassment is understandable but it need not have caused his resignation; if instead he had returned to ICAC the following day, declared his mistake and apologised, he would have remained premier. It was generally accepted that he had made an honest mistake.

Now Berejiklian has resigned, and again ICAC is blamed. She was a very popular premier. The allegation is that she had a secret relationship with the disgraced former MP Daryl Maguire, someone she said she loved and wanted to marry one day.

This relationship had not been disclosed as required, and she is alleged not to have notified the Cabinet of a potential conflict of interest while discussing his business dealings.

If these allegations are justified, ICAC is surely doing no more than its proper job in holding a further inquiry. The issue relates directly to integrity in the exercise of public functions.

If similar allegations were raised about a male premier’s relationship with a disgraced woman friend amid suggestions that Cabinet had not been told of the relationship whilst discussing her business dealings there would have been a public outcry and great discontent if they were not investigated.

Of the other cases in which ICAC is said to have trashed reputations, two are worth mentioning. In the case of Murray Kear, an SES commissioner, ICAC made two findings, that he had dismissed a Tara McCarthy as a reprisal for reporting to Kear that one Steve Pearce, a friend of Kear, had engaged in corrupt conduct, a matter which Kear had admitted under cross-examination, and secondly that Kear had failed to investigate reasonable allegations McCarthy had raised.

These matters were investigated by the ICAC inspector, Bruce McClintock SC and both findings were found to have been properly based and still stand. Secondly ICAC found that Mike Gallacher, the police minister, was deeply involved in a serious criminal conspiracy to breach NSW electoral laws. ICAC also found that he was not a witness whose evidence could be relied on. Gallacher has not been cleared of these findings which remain absolutely undisturbed.

Public hearings are regarded as essential by most anti-corruption bodies. They expose corruption and misconduct to the public; they increase public trust through allegations of corruption being fairly investigated in the public interest; they make hearings more effective, by encouraging witnesses to come forward; they educate the public sector and the community about corruption and misconduct issues; they improve the integrity of the public sector; and they deter others from engaging in corruption.

Before a body such as ICAC or Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) embarks on public hearings, it will invariably have carried out long and detailed investigations and hearings in private, before those conducting the hearings are satisfied that a public hearing is justified and in the public interest.

Public hearings in commissions have been repeatedly considered by the courts and no less than three chief justices of the High Court have spoken in favour of the use of public hearings.

Former High Court chief justice Murray Gleeson and Bruce McClintock SC in their review of ICAC after the Cunneen decision said “public inquiries, properly controlled, serve an important role in the disclosure of corrupt conduct …”. Former judge Tony Fitzgerald QC said that the proposal to close anti-corruption hearings “demonstrates a fundamental ignorance of democracy. Effective democracy depends on informed voters.”

We know from matters such as the sports rorts and the car park rorts that the Coalition is prepared to misuse vast amounts of taxpayers’ funds for improper electoral or other purposes.

Our community is sick and tired of politicians engaging in favour for favour; returning benefits and access to large donors; giving contracts to friends and allies; and using taxpayers’ moneys as if they were their own; it has had enough of the evasions and secretive responses of this government.

The community is longing for integrity and most want a strong national integrity commission.

When you hear a federal politician saying we can’t have one like the NSW ICAC, with the power to hold public hearings, remember that this Coalition already has proposed an integrity body half of which will have the power to hold public hearings and make findings of corrupt conduct about a large number of law enforcement bodies; and that they have had year-long commissions into the banking industry, sexual abuse and aged care, all in public, with a parade of witnesses up to the highest level.

Remember also that there is Commonwealth legislation that enables commissions into judicial misbehaviour (up to the High Court) to be heard in public.

When Coalition members say to you we must not have public hearings because they will destroy people’s reputations what they are saying is not that other people’s reputations may be hurt, we know they are not concerned about that.

The only people they don’t want investigated in public are Coalition parliamentarians. What they mean is that their reputations may be damaged in such hearings.

And these are among the very people that should be required to answer questions from an integrity commission.

Read this article and more excellent analysis from Pearls and Irritations here

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