“The thing is it seems almost as if it’s set up as though it’s designed to fail,” remarked Geoffrey Watson SC when asked about the Attorney General’s recently released proposal for a federal anti-corruption watchdog. “You could not waste money setting this body up.”
The esteemed Sydney barrister ought to know. Over the last decade, he has served as counsel assisting the NSW Independent Commission Against Corruption (ICAC) on a number of high-profile cases, including those of senior state politicians, well-known businesspeople, and yes, former Labor MP Eddie Obeid.
Christian Porter released the draft of the Commonwealth Integrity Commission Bill 2020 on November 2. It’s a long document that proposes to deliver on a dated promise Prime Minister Scott Morrison made to install a federal public service anti-corruption body in December 2018.
The ever-so-reluctant Coalition government tried to blame COVID-19 for the delay. Closer to the truth is it never wanted to deliver on a corruption watchdog and independent MP Helen Haines forced its hand by introducing her own bill that would establish a more robust version.
Indeed, Porter dropped his much-delayed bill just seven days after Haines floated hers. But he also bought his party some further respite by ensuring a six-month consultation period.
Behind closed doors
The proposed Commonwealth Integrity Commission (CIC) would have two divisions: law enforcement and public sector. The body would subsume the federal law enforcement watchdog, the Australian Commission for Law Enforcement Integrity. The CIC would continue to operate as it currently does, holding public hearings.
However, the public sector division — which covers 80% of the public service including federal politicians — will be able to hold closed-door proceedings.
It’s this division and the secrecy that have led critics to dismiss the commission as a “toothless” watchdog.
“I know of no theoretical basis to divide the activities like this,” Watson told Green Left. “I’ve looked at modelling from around the world and around Australia. There’s no precedent.”
Porter’s assertion that most corruption comes from law enforcement does not ring true, Watson said. “Fundamentally, I just have no idea why two human beings are being treated differently. I see that politicians have resolved that they be treated beneficially under the legislation, and it hardly comes as a surprise to me”.
While the lack of transparency appears to be an anomaly in terms of anti-corruption bodies, it is in keeping with the Coalition’s approach, whether that is trialling whistleblowers in secret or nondisclosure on certain required national security matters.
No shortage of fodder
“Strategically, any government wants proposed new laws, like a commission against corruption, to be made public and debated in a quiet period,” said Civil Liberties Australia CEO Bill Rowlings. But, he said, the Morrison government is “bedevilled” by the context “being so poor”.
A former media advisor to a senior federal politician, Rowlings posits the political landscape is like a minefield. He listed the sports rorts affair, evidence emerging of abuses within the army’s Special Air Service Regiment (SAS), the Leppington Triangle scandal and the use of federal offices for branch stacking.
Another issue Rowlings raised was the recent ABC Four Corner’s report on alleged misogynistic behaviour of senior cabinet ministers including Porter. There are a number of other suspect matters hounding the nation’s chief lawmaker, including the gagging of defence contract information.
“We shouldn’t overlook the Liberal stacking of the Administrative Affairs Tribunal with judicial officers by Porter, when he thought the Coalition was going to lose the 2019 election,” Rowlings added.
“From their perspective, the last thing AG Porter and PM Morrison want to do is to launch the CIC into such a boisterous and poisonous environment.”
Somewhat ironically, it was the Coalition that established the NSW ICAC — which is often held up as an example of a watchdog with teeth.
Liberal leader Nick Greiner ran in the 1988 state election on a platform that prioritised anti-corruption and, on becoming NSW premier, he passed legislation installing the body.
The CIC would have the same compulsive powers as the ICAC, which include no right to silence for those testifying and no ability to refuse to produce documents.
But Porter’s bill is designed to ensure that no politicians or senior bureaucrats ever take the stand to be subjected to them.
In terms of the public sector division, corruption must constitute a federal offence and the to-be-installed integrity commissioner must hold a reasonable suspicion that the crime has been committed prior to opening an investigation.
Watson maintains that this is “just silly”.
“Not all corruption is a crime. An investigative body like this should be looking at things far more broadly,” the barrister said, adding that if reasonable suspicion applied in NSW, the prosecution of Obeid would never have happened as that inquiry was based on an anonymous tip-off.
Section 70 of the CIC bill would create an offence for making a public sector corruption notification or referral if it’s found to have no basis or is intended to cause detriment. This would carry up to 12 months prison.
“In this day and age, when you’re fighting corruption, to think that you would impose more severe sanctions on potential whistleblowers than you would upon politicians strikes me like they’ve got this the wrong way around,” Watson said.
Bona fide watchdog needed
Another obvious reason that Morrison and Co. may be reluctant to establish a watchdog that has the ability to weed out corruption is that ICAC revelations actually caused Greiner to resign. In 2014 it also claimed the scalp of then-NSW premier Barry O’Farrell.
Civil Liberties Australia has been lobbying for a federal anti-corruption body for some time now.
Rowlings said that while there’s definitely interest in prominent places for a corruption watchdog with reach, the version that Porter has put on the table is not it.
The long-term civil liberties advocate is adamant that a corruption commission with enough power to do the job properly needs to be coupled with a human rights act, which would not only further hold government to account but would also empower citizens to uphold their own rights.
“They’re not serious about it,” Watson concluded. “During the consultation process, these flaws will be pointed out, and they’ll say, ‘Good god, we’ve got to go back to the drawing board’.”
“I’m 60 years old. I wonder whether I’ll see one in my lifetime.”
[Paul Gregoire is a Sydney-based journalist who writes for Sydney Criminal Lawyers.]