There are few things as melodramatic as the Independent Commission against Corruption’s counsel assisting pressing the “play” button for a witness’ hitherto private conversations to go public against a backdrop of astonished gasps.
It was used with great effect by then-counsel assisting Geoffrey Watson SC in Icac’s Operation Jasper, when witnesses’ strenuous denials about coal deals were laid bare by the tape machine.
Horror of horrors, the wriggle room suddenly vanished.
So on Monday we had New South Wales premier Gladys Berejiklian’s close relationship with Daryl Maguire laid bare for prurient public consumption.
As every semi-conscious citizen of NSW and beyond now knows, Maguire is the disgraced former Liberal MP who was in a “close personal relationship” with the premier – even while he was under investigation by Icac for personally benefiting from his political office.
Acres of analysis is being applied to the particular misjudgments and vulnerabilities that now engulf the otherwise saintly Berejiklian.
In the process it would be good to have clarified if a different standard would apply if a premier in this situation were male.
The entire episode is a timely reminder of the disinfecting sunlight that Icac is capable of shining. NSW would be an unsavoury place without an integrity commission’s sanitising work in rooting out corruption in relation to political donations, lobbing, local government, universities, property developers and public administration.
The list, even in the past 10 years, is long. The agency has wrought damage to both side of politics. Who can forget the Obeids, or the Aldi bag of cash delivered to ALP HQ, or the fall of Liberal premiers Nick Greiner and Barry O’Farrell?
Yet the standing of Icac as an independent integrity agency remains high, even as it withstands funding and staff cuts and complains that the shortfall will have an “immediate and serious” effect on its ability to fight corruption.
All the states and territories have their own versions of Icac – the gaping hole in the national scheme is the absence of a federal corruption fighting body.
One has been promised but the design proposed by the attorney general, Christian Porter, would allow serious instances of corrupt behaviour to be hidden from view, until such time as there was a prosecution or conviction.
A draft bill was promised a year ago, but it is so low down the government’s list of proprieties that it is unlikely to emerge before this year is out.
In serious public sector cases the attorney general’s proposed Commonwealth Integrity Commission does not accommodate open inquiries, in most situations it does not allow the commission to initiate investigations on its own motion, it cannot make findings of corruption, it cannot seize evidence or conduct surveillance and it must not examine allegations of corrupt conduct that occurred prior to the passage of the legislation.
In effect, under Porter’s model for commonwealth integrity, the public would be blissfully unaware of the most serious examinations of corrupt political or administrative behaviour.
This proposed arrangement is worse than not having an anti-corruption commission at all, because it would give a false patina to places where there should be teeth marks.
Apparently, Porter’s design is to protect the reputations of people who have been “unfairly damaged”. Yet in the important areas of election funding or coal dealings in NSW and in the numerous other inquiries criticised by the Murdoch papers in particular, no determinations have subsequently been made that parties have been wrongly accused.
In fact, there are judgments upholding Icac’s adverse findings against individuals.
The AG’s idea that corruption can only exist at the standard of the criminal law is a flawed notion, the effect of which would be to let many rogues off the hook.
The body before which Berejiklian has just made such a stellar appearance is an administrative body, with powers broadly similar to a standing royal commission, charged with probing inquisitorially rather than adversarially. Its findings are then the province of the prosecutors – whether to take the findings to court where they would have to be proved beyond reasonable doubt and where much of the evidence before Icac might not be admissible.
It’s not as though the commonwealth sphere is so lily-white that there is nothing to investigate. The public may have been enlightened if there had been such an investigation into the energy minister, Angus Taylor, and his office and their involvement (if any) in forged documents being peddled to the Daily Telegraph to falsely discredit a political opponent.
So too Taylor’s alleged discussions with then-environment minister Josh Frydenberg over the classification of endangered grasslands.
The Slipper affair was never fully investigated to the satisfaction of the electorate – this involved attempts by MP Mal Brough and former staffer James Ashby to obtain copies of the diaries of the then-speaker of the House of Representatives. And there are the hundreds of millions of dollars of donations that are designed to influence government decision-making that pass unimpeded every day.
It is not too florid to argue that effective machinery to investigate and deracinate corruption is at the heart of a fair and functioning democracy.
None of which is to say that Berejiklian’s self-confessed “stuff-up” takes us into the realm of corrupt behaviour – as opposed to conduct that is politically indigestible.