Labor’s ICAC looks like the real deal, but key definitions of corruption remain

While the bill for a federal anti-corruption body won’t be introduced into Parliament until tomorrow, its design principles are becoming clearer, and it seems the government is committed to an effective body.

In response to a question from independent Zoe Daniel yesterday, Attorney-General Mark Dreyfus said the commission would be able to pursue “conduct by any person that could adversely affect the honesty or impartiality of a public official’s conduct”.

And in response to a question from independent Allegra Spender, Dreyfus settled the matter of public hearings: “Public hearings must be available to this commission because the experience of the eight existing state and territory commissions has shown us that in order for an anti-corruption commission such as we proposing to be effective, there must be the possibility of public hearings.”

That’s exactly right — the effectiveness of an anti-corruption body requires public hearings.

In doing so, Dreyfus contradicted Opposition Leader Peter Dutton, who had claimed the government had conceded public hearings could amount to “show trials”, a position held only by the Coalition, News Corp and the ranks of the corrupt.

The remaining concern about the federal body is the definition of the conduct that would fall within its jurisdiction: “serious or systemic corruption”. The systemic part is straightforward; “serious” is more complicated.

The NSW ICAC approach has an expansive definition of corrupt conduct that includes adversely affecting the honest or impartial exercise of official functions by any public official, dishonest or partial exercise of official functions, a breach of public trust, or the misuse of information. But that definition is then caveated: it must be conduct that is a criminal offence, a disciplinary offence, conduct that would be reasonable grounds for dismissing a public official, or for ministers and MPs a substantial breach of an applicable code of conduct.

Note terms like “reasonable grounds” and “substantial” — the NSW legislation requires ICAC commissioners to exercise some judgment about what might justify an investigation. It appears the Labor model will rely more heavily on commissioners’ discretion to determine what “serious” might amount to, without limiting it in the way the NSW act does.

The threshold must be set somewhere; allowing the body itself to set the limits might work better than Parliament attempting to prescribe it. The benefit of that approach is that a future Coalition government will have less capacity to narrow the remit of the body by dictating what conduct should be examined.

One more thing: probably the most absurd argument against an effective federal ICAC came on the weekend from Liberal Senator Jane Hume. It’s worth quoting her words on the ABC’s Sunday morning circle-jerk in full:

We want the best and the brightest to join, but if the risk to your professional reputation, if the risk to your bank balance, if the risk to your life and your livelihood is there just because you can politicise a corruption charge, well, why would anybody enter public life?

The idea that an effective anti-corruption body would deter good people from entering public life is remarkable. Is the quality of federal MPs an indicator of the “good” people who have entered public life undeterred because there’s no federal ICAC?

Let’s have a look. Scott Morrison, who led the most corrupt government in federal history, who secretly swore himself into ministries and told the Murdoch press but not his own ministers, who misled Parliament, whose office smeared critics and led the partisan misuse of taxpayer funding across the government? Angus Taylor, whose office was embroiled in a police investigation involving forged documents attacking political opponents? Alan Tudge? Christian Porter? Michaelia Cash? Bridget McKenzie?

And perhaps Hume hasn’t checked Hansard lately, but the idea that the lack of a federal ICAC prevents people from making corruption charges doesn’t exactly hold up. It’s only a couple of months since Dutton opened his first question time by asking if the prime minister had been consorting with rapists.

The lack of a federal ICAC hasn’t stopped mud-throwing. But once it’s established, it will require politicians wanting to throw mud to put up or shut up.