Can­berra needs a watch­dog

The Monthly (Australia) - - FRONT PAGE - COM­MENT BY RICHARD DEN­NISS

Richard Den­niss plus Michael Du­laney, Sam Vincent and Jaye Kranz

The NSW In­de­pen­dent Com­mis­sion Against Cor­rup­tion (ICAC) never seems short of things to in­ves­ti­gate. Its in­ves­ti­ga­tions have led to the res­ig­na­tion of two NSW pre­miers and more than a dozen MPs, in­clud­ing a Coali­tion po­lice min­is­ter. La­bor power­bro­ker Ed­die Obeid and for­mer La­bor min­is­ter for resources Ian Macdon­ald are both in jail af­ter their il­le­gal deal­ings were ex­posed. But is cor­rup­tion con­fined to state pol­i­tics? How would we know?

Fear not. There is no need to cre­ate a fed­eral equiv­a­lent of ICAC. Sure, the Aus­tralian Wheat Board was caught up in a bribery scandal with Sad­dam Hus­sein, the Re­serve Bank was caught up in a bribery scandal re­lated to win­ning note-print­ing con­tracts abroad, and Se­na­tor Arthur Sin­odi­nos was sorely em­bar­rassed to dis­cover that a com­pany on whose board he served do­nated money to

the po­lit­i­cal party of which he was trea­surer. But they were iso­lated in­ci­dents and ac­ci­dents, all of them.

Aus­tralia’s fed­eral par­lia­men­tar­i­ans are vir­tu­ally the only ones in the coun­try with­out a ded­i­cated an­ti­cor­rup­tion watch­dog to keep an eye on them. (Each state has one, while the North­ern Ter­ri­tory and the ACT are both in the process of es­tab­lish­ing their own.) Al­though cor­rup­tion is com­mon­place at the lo­cal and state gov­ern­ment lev­els, the Turn­bull gov­ern­ment ap­par­ently be­lieves the fresh air of the bush cap­i­tal is enough to keep the stench of cor­rup­tion at bay.

Not ev­ery­one agrees. Tony Fitzger­ald, for ex­am­ple, thinks we need a fed­eral ICAC. Thirty years ago, Fitzger­ald’s royal com­mis­sion into po­lice cor­rup­tion in Queens­land shat­tered the com­pla­cency of the Aus­tralian po­lit­i­cal class. Four for­mer min­is­ters and a po­lice com­mis­sioner were sub­se­quently jailed. The in­ves­ti­ga­tion saw Pre­mier Joh Bjelke-Petersen thrown from of­fice and the end of his party’s 32-year reign. In hind­sight, it was clear why min­is­ters had had no need to fear the po­lice. It wasn’t just in­di­vid­u­als that were crooked, the state was cor­rupt.

Mean­while, in the lead-up to the 1988 NSW elec­tion, the for­mer state La­bor min­is­ter for corrective ser­vices faced court for tak­ing bribes to re­lease pris­on­ers early. The then Op­po­si­tion leader, Nick Greiner, promised to cre­ate an In­de­pen­dent Com­mis­sion Against Cor­rup­tion should he win the next elec­tion. He did and he did, and he was soon be­ing in­ves­ti­gated by that same body. And while the NSW Court of Ap­peal sub­se­quently over­turned ICAC’s rul­ing that Greiner would be seen “by a no­tional jury as con­duct­ing him­self con­trary to known and recog­nised stan­dards of hon­esty and in­tegrity”, he had al­ready stepped down as pre­mier over his de­ci­sion to use an un­ad­ver­tised pub­lic sec­tor job to help per­suade an MP to re­sign from par­lia­ment.

Many de­scribe it as ironic that the first ma­jor scalp of the NSW ICAC was Greiner him­self. To this day, the man who gave Aus­tralia its first stand­ing cor­rup­tion watch­dog gen­uinely doesn’t be­lieve that he be­haved im­prop­erly. At the fed­eral level, politi­cians claim they don’t need a cor­rup­tion watch­dog be­cause there is no cor­rup­tion that ex­ist­ing bodies can’t tackle. Fish can never taste the wa­ter they are swim­ming in.

Mean­while, the same fed­eral politi­cians con­tinue to hurl smears and al­le­ga­tions of cor­rup­tion at each other. Their op­po­nents, work­ing on the as­sump­tion that offence is the best form of de­fence, then re­turn fire with sim­i­lar ac­cu­sa­tions or, hav­ing no in­de­pen­dent um­pire to turn to, ac­cuse their ac­cusers of far worse. All the pub­lic hears are the ac­cu­sa­tions, be­cause in the Com­mon­wealth sphere there is no such thing as ex­on­er­a­tion.

With no stand­ing body that has the power to in­ves­ti­gate MPs, and no rea­son to be­lieve that the po­lit­i­cal par­ties that pre­s­e­lect cor­rupt can­di­dates for state par­lia­ments can en­sure they don’t do so at the fed­eral level, the pub­lic is un­der­stand­ably scep­ti­cal of those who say there is no prob­lem. Ar­guably, the grow­ing lack of faith in our politi­cians is it­self strong ev­i­dence of the need for such a body.

In a poll com­mis­sioned by the Aus­tralia In­sti­tute, an over­whelm­ing ma­jor­ity of those sur­veyed sup­ported the need for a fed­eral cor­rup­tion watch­dog: 80% of all re­spon­dents, and 84% of Coali­tion vot­ers, sup­port the in­tro­duc­tion of a fed­eral body mod­elled on the pow­ers of New South Wales’ ICAC. Given that both ma­jor par­ties are yet to make the case for one, that’s a pretty good start.

The news­pa­pers are full of rea­sons for vot­ers to de­mand more trans­parency and ac­count­abil­ity.

In July we learned that News Corp re­ceived $30 mil­lion of tax­pay­ers’ money in a deal for which no pa­per­work ex­ists. No doubt the min­is­ter for com­mu­ni­ca­tions is con­vinced the pay­ment rep­re­sents good value for tax­pay­ers’ money. And no doubt tax­pay­ers would be more con­vinced if the min­is­ter were an­swer­able to some­one other than his own col­leagues.

Peter Dut­ton, the min­is­ter for im­mi­gra­tion, will soon head up the new De­part­ment of Home Affairs. He will be re­spon­si­ble not just for the Aus­tralian Fed­eral Po­lice and Bor­der Force but also for the agency re­spon­si­ble for in­ves­ti­gat­ing cor­rup­tion in the Aus­tralian Fed­eral Po­lice and Bor­der Force. Making mat­ters worse, this agency, the lit­tle-known Aus­tralian Com­mis­sion for Law En­force­ment In­tegrity (ACLEI), is so un­der-re­sourced that it out­sources its in­ves­ti­ga­tory role to the AFP, one of the agen­cies it is sup­posed to mon­i­tor. It is in­ves­ti­gat­ing mul­ti­ple al­le­ga­tions of cor­rup­tion within Bor­der Force, some­thing we know de­spite the fact that ACLEI has not held pub­lic inquiries into al­le­ga­tions of cor­rup­tion in pub­lic bodies.

Then there is Barn­aby Joyce. The deputy prime min­is­ter and min­is­ter for wa­ter resources is, proudly, no friend of those who care for the nat­u­ral en­vi­ron­ment. When a farmer with a track record of il­le­gally clear­ing trees shot and killed an in­spec­tor, Joyce chose that mo­ment to tell us he un­der­stood that “many peo­ple have had enough” of state gov­ern­ment’s con­cerns with il­le­gal land clear­ing. And af­ter Four Cor­ners re­cently aired al­le­ga­tions that NSW farm­ers were stealing bil­lions of litres of wa­ter, and re­vealed that the state gov­ern­ment agency re­spon­si­ble for de­tect­ing such theft had abol­ished its in­ves­ti­ga­tion unit, the deputy PM was at it again. Speak­ing at a pub in Shep­par­ton, the man re­spon­si­ble for de­vel­op­ing and en­forc­ing Com­mon­wealth

laws in re­la­tion to wa­ter was dis­mis­sive of the al­le­ga­tions of se­ri­ous theft. “You know what that’s all about?” he asked rhetor­i­cally. “It’s about them [the ‘gree­nies’] try­ing to take more wa­ter off you, try­ing to cre­ate a calamity. A calamity for which the so­lu­tion is to take more wa­ter off you, shut more of your towns down.”

No, Deputy Prime Min­is­ter, it was about law, or­der, and the kind of re­spect for prop­erty rights that con­ser­va­tive politi­cians are usu­ally so en­am­oured of.

The for­mer fed­eral small busi­ness min­is­ter Bruce Bill­son is now the ex­ec­u­tive chair of the Fran­chise Coun­cil of Aus­tralia. He took up this po­si­tion in March 2016 while he was still an MP. Al­though he failed to dis­close to par­lia­ment at the time that he was col­lect­ing a sec­ond in­come, and work­ing for it, he apol­o­gised when it was re­cently re­vealed by ABC’s 7.30. Well, that set­tles the mat­ter, then.

In a par­lia­men­tary democ­racy, min­is­ters have enor­mous dis­cre­tion on a wide range of de­ci­sions. They are also privy to in­for­ma­tion that isn’t pub­lic, which is why, in a func­tional democ­racy at least, there are strin­gent over­sights and ap­peals pro­cesses and restrictions on how a min­is­ter can use in­for­ma­tion ob­tained when they were in of­fice. For ex­am­ple, there is a code of con­duct to limit the lob­by­ing ac­tiv­i­ties of min­is­ters af­ter they step down, but it is up to serv­ing min­is­ters to de­cide how much ef­fort to put into polic­ing the ac­tiv­i­ties of their pre­de­ces­sors and for­mer col­leagues.

Which brings us to for­mer trade min­is­ter Andrew Robb. In 2016, be­fore he had even left par­lia­ment, the MP had lined up an $880,000-per-year con­tract to work, part­time, for Land­bridge, the Chi­nese com­pany that con­tro­ver­sially ac­quired the port of Dar­win while he was trade min­is­ter. Robb, who ne­go­ti­ated Aus­tralia’s free trade agree­ment with China, was also ap­pointed to the board of Net­work Ten by Gina Rine­hart af­ter he left par­lia­ment. Later that year Rine­hart pur­chased S Kid­man and Co, Aus­tralia’s largest cat­tle land­holder. In March this year she bought the Aroona cat­tle sta­tion in the North­ern Ter­ri­tory, and then, just weeks later, the darnedest thing hap­pened. Aus­tralia and China an­nounced an agree­ment to dra­mat­i­cally in­crease Aus­tralia’s ac­cess to the lu­cra­tive chilled-beef mar­ket in China. What are the odds! Luck­ily Robb had al­ready started work on up­grad­ing the “beef roads” in north­ern Aus­tralia with tax­pay­ers’ money back when he was a min­is­ter, so Rine­hart’s op­er­a­tions shouldn’t have any prob­lems with in­fra­struc­ture as they rapidly scale up ex­ports.

Robb sits on the boards of four Rine­hart-re­lated cat­tle com­pa­nies. He de­nies he is a lob­by­ist and de­nies that he used any in­for­ma­tion gained while trade min­is­ter to help

the peo­ple who now em­ploy him. We have no rea­son to doubt him and he is cer­tainly not the first to sell strate­gic ad­vice post-par­lia­ment. For ex­am­ple, the for­mer ALP min­is­ter for resources Martin Fer­gu­son is, most avowedly, not a lob­by­ist for the oil and gas in­dus­try’s “peak body”. He is merely the chair of their ad­vi­sory board.

The min­is­ter re­spon­si­ble for over­see­ing the State­ment of Min­is­te­rial Stan­dards (it’s not a law) that seeks to pre­vent for­mer min­is­ters from lob­by­ing in their port­fo­lio ar­eas is con­vinced that Robb has done no wrong. In­deed, Spe­cial Min­is­ter of State Scott Ryan re­minded us to think about the fi­nan­cial chal­lenges of post-pol­i­tics life: “We have to be care­ful [that] some­one [who] has a broad port­fo­lio – par­tic­u­larly some­one like Andrew who was a se­nior busi­ness­man be­fore he came into par­lia­ment – isn’t pro­hib­ited com­pletely from work af­ter they leave pub­lic work.” Min­is­ter Ryan has ob­vi­ously taken all rea­son­able steps to con­vince him­self that there is noth­ing to see here. Move along.

But what if we didn’t want to move along? What if we wanted change? What might it look like? Not all watch­dogs are cre­ated equal. While none of the state and ter­ri­tory mod­els is per­fect, the NSW model – de­spite be­ing the first – is prob­a­bly still the best. It has a broad def­i­ni­tion of cor­rup­tion that al­lows it to start in­ves­ti­ga­tions into poor pub­lic-sec­tor prac­tice as well as po­ten­tial crim­i­nal breaches. History sug­gests that where there is smoke there is of­ten fire, and by low­er­ing the bar for ini­tial com­plaints ICAC’s in­ves­ti­ga­tors can of­ten find sys­tem­atic fail­ures and crim­i­nal be­hav­iour where ini­tially there was only ev­i­dence of waste and poor record keep­ing.

New South Wales not only al­lows pub­lic hear­ings but has also cho­sen to use that power fre­quently. While the Queens­land cor­rup­tion body has the right to hold pub­lic hear­ings, it has held barely any in its 28 years. Pub­lic hear­ings en­sure that the pub­lic can see that jus­tice is be­ing done, and in New South Wales there is clear proof that they en­cour­age more whistle­blow­ers to come for­ward with more in­for­ma­tion.

And, fi­nally, a com­mis­sion needs to be as legally and fi­nan­cially in­de­pen­dent as the ju­di­ciary. Com­mis­sion­ers need to have long-term ap­point­ments, bud­gets must be suf­fi­cient and sta­ble, and the body must be re­spected by all in par­lia­ment.

It is not in­evitable that the next Com­mon­wealth par­lia­ment will cre­ate a fed­eral cor­rup­tion-fight­ing body. But un­less our par­lia­ment moves to cre­ate one soon it will con­tinue to lose the moral author­ity on which del­e­gated demo­cratic author­ity ac­tu­ally rests.

Some will ar­gue that the ben­e­fits don’t jus­tify the hun­dreds of mil­lions of dol­lars re­quired to run a body that is big enough, and well re­sourced enough, to over­see 226 MPs, thou­sands of staffers, and hun­dreds of thou­sands of em­ploy­ees, contractors and re­lated par­ties. But given the gov­ern­ment’s will­ing­ness to spend $60 bil­lion on com­pany tax cuts to at­tract for­eign in­vest­ment, and given that nu­mer­ous eco­nomic analy­ses have shown that fear of cor­rup­tion is a ma­jor de­ter­rent to for­eign in­vest­ment, the costs can be jus­ti­fied.

Democ­ra­cies thrive on high ex­pec­ta­tions, and cit­i­zens must be able to trust par­lia­ments to make de­ci­sions on their be­half. Cre­at­ing a fed­eral cor­rup­tion watch­dog will not fix all of what ails our strug­gling body politic, but with luck and a bit of hard work the sys­tem may well right it­self. If, for ex­am­ple, Op­po­si­tion and cross­bench MPs are des­per­ate enough to gain votes and power at the next elec­tion, they might just be self-sac­ri­fic­ing enough to put the de­sires of the pub­lic ahead of their de­sire to avoid scru­tiny. It’s hap­pened be­fore.

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