Comment

Paul Bongiorno
Tasks pile up for the NACC

There’s a new party game in Canberra, sparked by the arrival of the National Anti-Corruption Commission. The game has a simple enough name: Who’s for the NACCery?

Politicians are falling over themselves to leverage maximum political advantage with the referrals they are making. The winners will be those who can claim vindication when the issues they have identified are pursued.

It’s not that a serious dose of virtue isn’t long overdue in national governance. It’s just that perceptions of partisan political pointscoring, should they be allowed to swamp the work of the commission, will undermine its credibility and its efficacy. We can be very grateful the inaugural head of the show, Paul Brereton, is alert to the danger.

In an opening address on Monday, which mightily impressed key figures in the Albanese government, Brereton issued a stern warning: “Should it be sought to ‘weaponise’ the commission through inappropriate or unfounded referrals, I will not hesitate to use the power to make public statements, if necessary, to avoid unfair damage to reputations and to say that the referral was inappropriate.”

What pleased the government was the commissioner’s generous acknowledgement that it had delivered on its election promise. In the campaign, Anthony Albanese identified that people wanted “to clean up politics” and the way to restore confidence in the system was a willingness to be held independently and transparently to account through a national anti-corruption commission.

One government insider is bracing for the sort of experience former New South Wales Liberal premier Nick Greiner suffered when he became the first major victim of his own creation, the Independent Commission Against Corruption, in 1992. To Greiner’s credit – though the finding of corruption against him was overturned by the courts on appeal – he never sought to diminish the vital role or credibility of the agency he had created four years earlier.

This is an example contemporary Liberal leaders, state and federal, have not followed after ICAC’s findings of “serious corrupt conduct” against former NSW premier Gladys Berejiklian.

Of particular relevance, in light of the Commonwealth’s new integrity agency, was the reaction of Opposition Leader Peter Dutton. It was a disturbing example of the post-truth tribalism we see, particularly from the American right in the style of Donald Trump. It augurs poorly for Dutton’s commitment to accepting fair and fearless findings that the NACC may make against anyone from his side of politics.

Dutton said he had known “Gladys for a long period of time” and she was well respected in the community. He didn’t “believe for a moment that she is corrupt”. He didn’t stop there, either, saying he believed “very strongly that she is a person of the highest integrity and I think she should stand with her head held high”.

This completely ignores the vast amount of evidence accumulated by ICAC and published in its two-volume report. Jacqueline Maley, writing in The Sun-Herald, powerfully summed it up. She said it was evident to anyone who had read the report “that Berejiklian was hopelessly compromised, untruthful and deeply unethical in her failure to disclose her relationship, while actively working to hand out taxpayer money to advance her lover’s interests”.

Dutton, like his Coalition colleague Barnaby Joyce, says findings of “serious corruption” should be made only by a judge and jury. This is either a confusion or a deliberate distortion of the role of a corruption commission as distinct from a court of law. Unethical behaviour doesn’t have to be in the criminal code before it is seriously corrupt and corrosive, a point forcefully made by Commissioner Brereton.

Brereton said at the NACC’s inauguration “corruption erodes public trust in government and the institutions of state and undermines democracy”. Following the partisan confections over Berejiklian, the commissioner added this “is equally so whether it is done by those who are popular or those who are unpopular”.

For now the federal Liberals are claiming some ownership of the NACC. Dutton rightly points out he collaborated with the government on the legislation. It was at his insistence the federal agency would deal with “serious and systemic” corruption and that public hearings would be only in the “public interest” and for “exceptional circumstances”.

Stephen Charles, an integrity advocate and former Victorian Supreme Court judge, believes this is too restrictive and could result in no public hearings. Attorney-General Mark Dreyfus disagrees. He stresses the complete independence and discretion of the commissioner to determine what is exceptional and meriting public exposure.

After all, the essential point of integrity commissions, following the example of the Hong Kong anti-corruption commission that inspired the ICAC model, is to name and shame. This educates and serves as a powerful deterrent to unethical behaviour.

Public hearings are invariably held only after substantial evidence has been gathered and the commission already believes serious corruption has been unearthed. If reputations are trashed in the process, the authors of that damage are the perpetrators themselves.

One former senior Liberal minister, Linda Reynolds, seems to have faith in the NACC. She is considering referring the Commonwealth’s settlement with her former staffer Brittany Higgins, who alleges she was raped late at night in the then minister’s office. Higgins’s draft statement of claim was leaked.

Reynolds has claimed the settlement, believed to be more than $1.5 million, was offered too hastily, and suggests possible corrupt conduct by the Albanese government. The attorney-general rejects any special treatment. Government sources point out negotiations with Higgins’s lawyers went on for close to a year.

Whether Reynolds goes ahead, or her complaint meets the criteria set out by Brereton, is a moot point. The former minister risks Brereton defending the reputation of Higgins publicly if his investigations find no basis for the much-publicised complaint.

Higgins herself has called on Reynolds to stop targeting her. She says Reynolds’ pursuit of her has been going on for years and her former boss “continues to harass her through the media and in the parliament”.

Albanese says it’s “entirely inappropriate for politicians to ask the anti-corruption commission to look into Brittany Higgins’s payout”. Dreyfus has pointed out such payouts are always confidential to protect privacy. In this there is no difference from the treatment of the payout to another former Liberal staffer, Rachelle Miller, after she complained of mistreatment.

On stronger ground is the wish list of cases the Greens are preparing to refer to the NACC. The party’s justice spokesperson, David Shoebridge, says the Greens’ 15 MPs and senators would work across their portfolios in coming months. At the top of the list is the PwC scandal, where consultants allegedly breached confidentiality to hugely profit themselves.

Shoebridge says the commission needs to inquire “further and deeper” into former minister Stuart Robert’s dealings with the lobbying firm Synergy 360 and the $374 million in taxpayer funds spent on contracts awarded to the company’s clients.

Brereton says the commission is aware of issues running in the media and may not wait on referrals before digging deeper into Robert’s complicated web of dealings.

In the meantime, some sort of judgement may be passed on the controversial former minister at the byelection for his seat of Fadden on July 15. Labor doorknockers are finding considerable hostility towards Robert among voters and shock at the revelations of his behaviour, particularly in the robo-debt scandal.

But the canvassers are invariably being told people will continue to vote for the Coalition, because that’s what they’ve always done. Labor is bracing for a swing against it in light of the pain felt by the large cohort of younger families in the electorate, who are either renters or mortgage holders. The fact the Reserve Bank of Australia kept interest rates on hold at 4.1 per cent this month may not be enough of a reprieve for the government to pull off another shock result like the one at the Aston byelection on April 1.

Fadden is a much more entrenched Liberal stronghold and, according to one senior Labor campaigner, while voters don’t believe the opposition has any answers for their cost-of-living pain, it’s still an opportunity to send the government a message that they are unhappy with their lot.

There is a glimmer of hope in Labor’s ranks that it may just pull off a swing away from the Coalition or at the very least not lose any ground. If Peter Dutton fails to get the average 5 per cent swing to an opposition at a byelection, we can expect Albanese to trumpet such a result as a win.

At least the NACC won’t have to investigate. Fortunately, the integrity of the Australian Electoral Commission is not in question.

This article was first published in the print edition of The Saturday Paper on July 8, 2023 as "Who’s for the NACCery?".

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