As pressure mounts out of the hat jumps draft legislation for a Commonwealth Integrity Commission … Peculiar structure based on flawed reasons … Porter’s politician protection racket … Drinking News Corp’s Kool-Aid … Janek Drevikovsky reports
As Coalition colleagues are mired in sports rorts, the distribution of fabricated information about political opponents, buying water rights and airport land at inflated prices (to mention a few recent blotches on the ethical escutcheon) Porter clenched his teeth and delivered his draft legislation.
This comes almost two years after he unveiled a consultation paper for a Commonwealth Integrity Commission – a pre-election exercise in throwing crumbs to an electorate that was showing 80 percent support for a meaningful body to fight corruption at the Commonwealth level, with 76 percent agreeing it should have the ability to hold public hearings.
The draft bill of 363-pages is subject to further consultations until February-March, 2021.
In his announcement of November 2, 2020 Porter was keen to sell the red meat components of his plan.
“The Commonwealth Integrity Commission … will have greater powers than a royal commission.”
It can compel evidence, intercept phone calls, demand documents, search, seize, and imprison non-compliant people for up to two-years.
The CIC’s G-men will even have the power to “assume false identities for the purposes of investigation”.
Thrilling stuff, although these massive powers are limited to special occasions.
Porter’s Bill sticks with his initial concept of two CIC divisions, one to monitor federal law enforcement agencies and the other to monitor the public service, including parliamentarians.
The law enforcement division will be able to launch investigations on its own motion if it thinks there has been a “corruption issue” – broadly defined as abuse of office or perverting the course of justice.
The law enforcement division can also conduct public hearings, if it sees fit.
However, things are wrapped in cotton wool for those in “public service”. There, an investigation can only take place if there’s been a referral by an agency-head.
The referral must raise “reasonable suspicion” that one of 143 listed corruption-offences has been committed, yet public hearings are a big no-no.
Kid gloves are pulled on when it comes to politicians. MPs and senators can only be investigated if they refer themselves to the CIC. And their staff can only be investigated if, again, the relevant MP makes a referral.
The public sector division does not make findings of corruption – instead it will send what evidence it has to the DPP.
Politicians and staff cannot be publicly held out to dry, that is the preserve of law and order functionaries.
The AG has an explanation:
“There is a higher risk and a much greater threat from corruption inside law enforcement agencies insofar as they are the agencies that are meant to enforce the law.”
And the reason why politicians, their staff, public servants and government agencies are treated more gingerly is because the AG doesn’t want a NSW ICAC “on steroids”.
He says his legislation avoids “the significant mistakes of state integrity bodies and strikes at the right balance …
“People’s lives and reputations in the public sector have been destroyed when there’s been no prosecution or indeed an ultimate finding of the commission has been reversed.”
But, does the history of state corruption watchdogs support the spin?
The charge that “zealous” state anti-corruption bodies damage “innocent” people has been peddled by the Murdoch press, and Porter has used this to justify creating a watch-poodle for politicians, staff and public servants.
The AG cites his own experience with WA’s watchdog, the Crime and Corruption Commission or CCC:
“[H]aving been a prosecutor during some of the excesses of the CCC in WA and a state attorney general when some of those excesses were being tidied-up and dealt with and having watched people’s careers be absolutely destroyed.”
News Corp papers have reported that several of those condemned by NSW’s ICAC were later “exonerated”. Like much of what appears in those organs, this is a distortion of the truth.
The Australian claimed that former police minister Michael Gallacher was “vindicated” in a report by ICAC inspector Bruce McClintock.
Gallacher had never been never found corrupt. He was forced to resign after ICAC’s counsel assisting Geoffrey Watson SC accused him of orchestrating political donations in breach of the rules.
But there was evidence, both in the form of testimony and various documents, that there had been untoward political donations.
Operation Spicer found that Gallacher and four others were “party to an arrangement” to hide payments by interests associated with Newcastle businessman Nathan Tinkler to the Liberal Party.
Gallacher “acted with the intention of evading laws under the Election Funding, Expenditure and Disclosures Act relating to the disclosure of political donations and the ban on donations from property developers”.
It was also found that Gallacher was not a truthful witness. The premier, Mike Baird, said that “ICAC is doing its job”.
Watson agreed he could have worded the question differently; but a Bar Association committee later found that it had not been improperly asked.
It’s a far cry from Gallacher being “vindicated”.
Another of News Corp’s favourite ICAC “victims” is Murray Kear, the former NSW emergency services commissioner who was found corrupt after he failed to investigate an internal complaint.
Chris (The Tamil) Merritt, then the legal affairs correspondent at The Australian, wrote that Kear was “exonerated”.
In fact, the finding of corrupt conduct still stands. Kear was separately acquitted on different charges under the Public Disclosure Act, unrelated to the ICAC’s findings.
Much the same can be said about former Baker & McKenzie man John McGuigan, found corrupt over his involvement in Eddie Obeid’s Mt Penny coal licence schemes.
Claims that he was “exonerated” in a federal court case are simply untrue. That case cleared his company of anti-competition charges, but said nothing about McGuigan’s personal corruption.
The same goes, again, for Charif Kazal, a property developer found by ICAC to be corrupt after paying over $11,000 to a senior executive at the Sydney Harbour Foreshore Authority.
The former ICAC inspector John Nicholson SC handed down a lengthy report, which found ICAC acted within its powers.
In the case of former NSW minister Ian Macdonald, his conviction on corruption charges was quashed last year, yet an appeal court found that Macdonald’s trial judge had misinstructed the jury, not that the former ALP politician was innocent of corruption.
Macdonald is facing a retrial next year.
The Tamil has so consistently distorted the facts that barrister and former ICAC counsel assisting Geoffrey Watson SC lodged a complaint with the Australian Press Council.
Perhaps the greatest claimant to ICAC victimhood was former prosecutor Margaret Cunneen SC.
Cunneen successfully stopped ICAC from investigating her, with the High Court finding that the body had stepped outside its statutory powers.
ICAC never completed its investigation into whether Cunneen really did tell her son’s girlfriend to feign chest pains so as to avoid a breath test.
Porter’s case that ICAC has destroyed innocent vistims, who were subsequently vindicated, just does not stack-up.
As Law Council of Australia President Pauline Wright explains, there should be discretion to hold public hearings, when necessary:
“While hearings should generally be conducted in private, [there should be] some discretion over whether to conduct hearings in public if it is in the public interest to do so or where a closed hearing would be unfair to the person subject of the investigation.”
Some of the CIC’s granular details were spelled out by Porter at a press conference on November 2.
Janek Drevikovsky’s reporting for Justinian is supported by the Judith Neilson Institute for Journalism & Ideas