You might’ve been hearing a little bit about ICAC. Or, a lot about it – after all, the public hearings for the investigation into former NSW Premier Gladys Berejiklian begins today. When ICAC announced it would be investigating claims of corruption and breach of trust by Berejiklian, many you wondered why Australia doesn’t have a Federal version of ICAC. After all, there have been more than a few questionable decisions made by politicians that could be investigated by a national anti-corruption body. So, how would a Federal ICAC work and why don’t we have one?
Here’s what you need to know.
What is the NSW ICAC?
The Independent Commission Against Corruption was established in 1988 by the NSW Government to investigate corruption in the public sector. The NSW Government acted on growing community concern about the integrity of public administration, and set up ICAC with three principle functions:
- to investigate and expose corrupt conduct in the NSW public sector
- to actively prevent corruption through advice and assistance, and
- to educate the NSW community and public sector about corruption and its effects.
Historically, efforts to fight corruption within the public sector relied upon an actual criminal offences being committed, such as fraud, to warrant an investigation. But now ICAC is empowered to investigate allegations of corruption and ask questions within a public forum even if the behaviour isn’t a crime.
Do other states have ICACs or only NSW?
Yes, but they are all a little different.
VICTORIA: The Independent Broad-based Anti-corruption Commission (IBAC), which was established in 2012. This body can hold public hearings only in “exceptional circumstances” when investigating issues in the “public interest.” Deciding whether something is in the public’s interest involves a test that weighs the benefit of public seeing the hearing against the damage of the reputation of the people under investigation. IBAC is currently investigating claims that Victoria Labor was branch-stacking.
QUEENSLAND: The Crime and Corruption Commission was established in 2001. Like the IBAC and most of the corruption fighting agencies on this list, the QCCC can only hold public hearings when – you guessed it – it is deemed in the public interest to do so.
WESTERN AUSTRALIA: The Corruption and Crime Commission began in 2004, and doesn’t often hold public hearings, but will if it’s in the interest of the public to do so.
SOUTH AUSTRALIA: The South Australian ICAC was established in 2013. But in mid-September, the SA parliament voted to pass a bill to reduce the state’s ICAC powers. This means that from early October, the body can only investigate corruption, not misconduct or maladministration. So, the politicians literally passed a laws to reduce the power of the corruption body that investigates them – sounds about right.
TASMANIA: The Tasmanian Integrity Commission (TIC) can hold public hearings where there is “factual basis to support findings of serious misconduct… or systemic misconduct.” Which is just a fancier, wordier way of saying “if it’s in the public interest”.
ACT: The ACT Integrity Commission was established in 2019, and is still yet to hold a public hearing. If it’s in the public interest, it will hold these publicly.
NT: The Northern Territory ICAC was established in 2018 and has held 8 investigations.
Does the Australian public want a federal ICAC or corruption body?
Heck yes. Trust in the government and politicians is at an all time low, and so it’s little surprise that 81% of Australians want some version of a Federal ICAC. When Berejiklian’s investigation and resignation were announced, Zee Feed readers immediately asked about why Christian Porter is not facing similar scrutiny for taking legal funds from a mystery donor.
Voters are becoming increasingly suspicious of the current Government’s refusal to hold themselves accountable.
So, why don’t we have one?
In December of 2018, Morrison announced the establishment of a Commonwealth Integrity Commission (CIC) to satisfy demands for a national integrity body. The federal government has since said they remain committed to the body, however have halted developments until the pandemic subsides. They could have acted on this promise at any time in 2019, before the pandemic began, but they didn’t.
Senior law lecturer Dr Yee-Fui Ng told The New Daily late last year the delay on the integrity commission comes down to the simple fact that it is a threat to MPs – which you have probably worked out for yourself too. “It is not in their self-interest to create a powerful body that could dig up the dirt on their own actions.”
While a draft plan was submitted in May 2021, it was found to be too weak to catch lawbreakers in the public sector. The proposed body would only have the power to conduct hearings and investigations when public servants commit criminal offences. The Australian Federal Police Association also criticised the draft as it would not allow the public to send tips or information to the commission. On top of all of that, the draft specifies that none of these investigations would be made public.
Under Morrison’s proposed model, Berejiklian wouldn’t be under investigation because she didn’t necessarily commit a criminal offence. And back in 2014, Barry O’Farrell also probably wouldn’t have been forced to resign over that darn bottle of wine (that was worth $3000). But the conduct of both does call into question their integrity, and whether they have betrayed their responsibility to the public. It’s still in the public interest to answer those questions.
Even though it’s been more than six months, the federal government is yet to respond to the criticism or make any changes to the proposal. In October 2020, they allocated 76 staff members and funding for a CIC division, however in the May 2021 budget this was quietly reduced to a total of zero staffers.
Believe it or not, it gets worse!
Morrison has already said that the NSW ICAC model is something he would never consider: “You have got to have processes that assume people are innocent before they are thought to be guilty and that is a real problem.” Never mind that fact that ICAC does not operate this way at all – they are holding an investigation for the purpose of determining what really went down, no guilt assumed.
What are the Greens proposing instead?
The Greens have been attempting to pass a national anti-corruption bill since 2013 – it’s called the National Integrity Commission. The bill was passed in the Senate in 2019 with the support of Labor, but the House of Representatives is yet to consider it. They’ve been busy, or something.
In November 2020, Greens Senator Larissa Waters outlined what this proposed anti-corruption body would look like. According to her, it would include:
- Broad jurisdiction to investigate corrupt conduct within the public sector;
- Strong investigative powers (even more powerful than a Royal Commission);
- Ability to hold public hearings when in the public interest;
- Ability to commence investigations independently or based on tip-offs from the public;
- Adequate and secure funding;
- Ability to publicly report outcomes of investigations
- Oversight by a multi party committee, and
- Investigations subject to procedural fairness, and findings open to judicial review.
Basically everything it would need, and everything we could want.
In 2018, Labor announced they would legislate an anti-corruption commission and promised to set it up within six months if they won the election.
What does this mean for the 2021 Federal election?
Considering how much discussion is happening on this topic at the moment, it’s likely that a Federal ICAC or similar anti-corruption commission will be a huge talking point of the election. You will probably see another election promise to act on this from Labor and Anthony Albanese, and potentially even an endorsement of the existing Greens proposal. Morrison and the Liberal Party are also likely to make it an election ‘promise’ once again, but it will draw attention to the fact that they’ve refused to act for four years already.
