Who’s afraid of a federal ICAC?

The sudden resignation last Friday of New South Wales Premier Gladys Berejiklian, following the announcement she was under investigation by the NSW Independent Commission Against Corruption, was bad news for Scott Morrison.

It wasn’t just that he lost his once “gold standard” premier, a popular and competent-seeming state Liberal leader, at a time when Coalition competence is in short supply. It was also that the probe brought the idea of corruption watchdogs back to the fore, highlighting the glaring absence of a national body – an inconvenient reminder that the federal government had yet to introduce one, almost three years since promising to do so.

Prime Minister Morrison doesn’t particularly want to be talking about anti-corruption commissions right now – as the outgoing NSW deputy premier, John Barilaro, joked on Monday, the first rule of ICAC is you do not talk about ICAC. Still, the government has tried to exploit Berejiklian’s departure to push back against implementing anything remotely as powerful as the NSW commission.

The Coalition was quick to infer ICAC overreach, in order to justify its own toothless proposal. The state watchdog was alternatively described as “a witch-hunt”, “the Crucible”, “a kangaroo court”, or, in the words of Deputy Prime Minister Barnaby Joyce, “the Spanish Inquisition”. The NSW anti-corruption commission, Joyce told breakfast TV’s Sunrise, makes politicians “terrified to do their job” – a comment revealing as to what the Nationals leader thinks the job of a politician entails.

Morrison took the next swipe on Tuesday’s Sunrise. “I’m sure there are millions of people who’ve seen what’s happened to Gladys Berejiklian,” he lamented. “They’ll understand that’s a pretty good call not to follow that model.” The process, he added, needs to assume people are innocent before proven guilty, as if the NSW commission had assumed anything other.

Speaking on Radio National, the assistant minister to the attorney-general, Amanda Stoker – who promised that legislation for a federal commission was “well advanced” – was painting her own NSW bogyman, describing ICAC as a “monster”. “Who’s going to watch these all-powerful armies of lawyers who are able to hide under the veil of independence?” she asked, implying overzealous commissioners, not politicians, were the ones in need of watching.

The Morrison government has been at pains to argue it cannot and should not introduce a NSW-style anti-corruption commission – certainly not one that is going to be able to publicly embarrass politicians, as NSW’s has just done.

But the Coalition has never really wanted to introduce a federal watchdog, let alone a powerful one, for the obvious reason that many of its MPs would likely be under investigation by it.

The Commonwealth is the only jurisdiction in Australia not covered by an integrity commission, with each state and territory possessing their own. NSW has had its commission since the late ’80s, established in response to a series of corruption scandals. The territories established theirs, the most recent, in 2018. But calls have long been growing for a “federal ICAC”, with the Greens, independents and legal experts all championing the cause – one widely supported by the public.

The Morrison government finally committed to introducing a commission in December 2018, after years of rejecting the need for one, and just weeks after describing it as a “fringe issue”. The move, many suspect, was also aimed at neutralising the issue at the upcoming election, where Labor had pledged to introduce one within 12 months of taking office. It may also have had something to do with Queensland Liberal National Party MP Llew O’Brien threatening to cross the floor on a Labor or crossbench bill to establish one.

“It is an investigative body, with serious investigative tools,” said then attorney-general Christian Porter, announcing the Commonwealth Integrity Commission. “This is a real proposal, with real resources, real teeth,” the prime minister added.

Experts disagreed. Right from the start, the Coalition’s two-division model, separating the CIC into a law enforcement and a public sector division, was criticised for its weakness, with the division covering politicians to hold no public hearings and make no public findings, only referring issues to the Director of Public Prosecutions. The government’s model would not allow for retrospective inquiries and would not allow the commission to initiate its own investigations or act on tipoffs, only on the instruction of agency heads or government. It would only investigate conduct likely to be a criminal offence. All of this would fundamentally limit its effectiveness, legal experts argued. Which, of course, was the point.

Since then, progress has been painfully slow. Little if any notice has been paid to public feedback. Despite submissions on its consultation paper closing in February 2019, and despite the 2019–20 budget allocating $104 million to establish a CIC, the government took almost two years to release any legislation, while promising multiple times that it was coming soon, being finalised, or, laughably, would be done “a lot quicker” than Labor’s 12-month commitment.

As with its response to the Respect @ Work report, which remained untouched on the attorney-general’s desk for more than a year, the Coalition has blamed delays on the pandemic, despite having been able to push through plenty of legislation it considered more pressing.

Over these years, multiple motions have been moved in the house of representatives and the senate by non-government MPs to establish an integrity commission, or for a commission with stronger powers than those being proposed. All such moves have been blocked by the federal government. Independent MP Helen Haines’s plan – introduced in October 2020 – remains one of the strongest models, and has been backed by experts and the crossbench, along with the Greens’ National Integrity Commission Bill 2018, based largely on a bill introduced by Haines’s predecessor, Cathy McGowan.

The government’s own draft bill was finally released in November 2020, almost two years after submissions closed. The proposal was again dismissed as devastatingly weak, with seemingly no changes to the widely savaged model that had been laid out two years prior.

Shadow Attorney-General Mark Dreyfus says there is no sign the government has been taking feedback seriously. “If they were,” he says, “the exposure draft that Porter released would not have effectively followed the model outlined in his initial discussion paper … What’s the point of saying that we’ve consulted deeply and carefully if you’re going to ignore all of the criticisms?”

A comparison released this week by The Centre for Public Integrity – a long-time critic of the government’s model – found that the Coalition’s commission would be the “weakest watchdog” in the country. The proposed model would not be able to launch its own investigations, hold public hearings, issue public findings or examine breaches of ministerial standards – all things that are part of the state models, as well as the Greens and Haines bills.

Perhaps most importantly, it would not have the ability to investigate any of the Coalition’s most egregious recent scandals, from sports rorts to commuter car parks.

Stephen Charles, QC, a former senior judge and a director of The Centre for Public Integrity, has been pushing back against efforts to question the NSW ICAC, telling Guardian Australia he had lost all hope of the Coalition introducing a proper federal watchdog. Joyce’s Spanish Inquisition comments, he added, were “very silly”.

Porter’s replacement, Attorney-General Michaelia Cash, has now promised to introduce a bill to parliament by the end of the year. But there’s next to no chance of a commission being created before the election, whether in November or March, with the legislation still needing to face a proper senate inquiry. There’s little chance, either, of it passing in its current form, with the opposition, Greens and independents still rejecting the body’s severe lack of powers.

On Tuesday this week, Haines and the Greens confirmed they will continue to seek to toughen the model, with yet another private member’s bill for more extensive powers. But as independent senator Rex Patrick told Nine, there’s little reason for the government to negotiate, seeing as it “doesn’t really care if it gets through or not”. Many opponents, meanwhile, believe that a substandard commission could be worse than no commission at all, with a deficient body to become a smokescreen posing as accountability.

If a bill isn’t passed before the election, the integrity commission is shaping up to be a major electoral issue, with battlelines drawn over the requirements of the watchdog. The Coalition no doubt plans to point to its lacklustre efforts to establish a commission, in order to claim that it tried but was held up by an unreasonable opposition.

It’s not yet clear how the attempt to portray the NSW ICAC as too extreme, in order to justify a watered-down federal one, will play with voters. As one Labor insider suggests, that’s not likely to work outside NSW. It also remains to be seen if “Hey, we tried” will work on the Liberal Party’s more moderate voters, with the growing independents movement planning to challenge their inner-city seats on the issue of integrity as well as climate change.

Nobody expects the Spanish Inquisition, after all. And nobody expects the long-awaited Australian one to have any teeth – not if the Morrison government gets its way.

This article was first published in the print edition of The Saturday Paper on October 9, 2021 as "Who’s afraid of a federal ICAC?".

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