Ken Phillips
19 April 2022
Criticism of the Morrison government for not introducing a national anti-corruption Commission is not about Morrison refusing to have a Commission. Instead, the criticism arises because Morrison refuses to have the type of Commission that Labor and the Greens want.
In essence, the anti-Morrison forces want an anti-corruption Commission that replicates the New South Wales Independent Commission Against Corruption (ICAC). The trouble is that the NSW Commission has long been accused of being a kangaroo court that has destroyed the careers of totally innocent and upright people. The ‘proof’ of this has been in the outcomes of subsequent court decisions, including in the High Court, that found the Commission had acted unlawfully. But the Commission had already had its destructive effect on the exonerated people.
The extent of the NSW Commission’s breaches of justice has been well documented by Chris Merritt, until recently the long-time legal affairs editor for The Australian and now Vice-President of the Rule of Law Institute of Australia. Chris has argued strongly against a NSW-type Commission being created nationally.
The Morrison government has conducted considerable work on modelling a Federal Integrity Commission. A draft Bill was released in early 2020 followed by an extensive consultation process.
Unlike the NSW Commission, the Morrison-proposed model would generally not hold public hearings and would not make public findings. The Federal Commission would prepare briefs for the Commonwealth Director of Public Prosecutions.
This Morrison proposal does not, of course, suit the political, strategic ambitions of Labor and the Greens in particular and Morrison-haters in general. The NSW Commission has been noteworthy for bringing down people in high office through a public humiliation process. The most recent high-profile case saw the resignation of NSW Premier Gladys Berejiklian following her public grillings.
With Labor being in opposition federally for such a long time, it yearns for a NSW-style Commission setup that can bring down Coalition Ministers and MPs through trial by public accusation. What it achieved in the media trial destruction of Christian Porter is just a taste of what the Coalition-haters think they could achieve with a NSW-style Commission.
Another feature of the Morrison proposal is that, generally, complaints could not be lodged directly with a Federal Commission. Lodgement by the public would first need to be made with the appropriate Commonwealth department which would then be required to lodge with the Federal Integrity Commission.
Again, Morrison-haters would find this immensely frustrating. A complaint would likely be consumed in an initial internal bureaucratic review away from the public eye. It would give the bureaucracy – and probably Ministers, it would be argued – the ability to prepare defences and engage in cover-ups. This doesn’t suit an opposition’s strategic playbook.
Note, however, that complaints about the ATO, ACCC, and ASIC could be lodged directly with a Federal Integrity Commission. But these are statutory authorities – Ministers do not ‘direct’ such authorities, which means that Ministerial political vulnerability is minimal.
Further, the Morrison proposal does not generally allow for retrospective referrals and investigative proceedings once the Commission is established. Matters that were already subject to criminal investigation could be reviewed, but any other matters would be excluded.
This also frustrates the Morrison-haters. Their ambition is to be able to refer and have endlessly scraped over in a public way every act of a prior government. Think of the fun a Labor opposition believes it could have by a referral of the Robodebt scandal for example. It has imaginings of every Coalition Ministerial utterance before, during, and after the scandal being examined and commented on in minute detail.
The motivation for all of this is obviously the quest for political opportunity through institutional structures. But of course, the ‘rub’ is that this can always backfire. Be careful what you wish for!
The NSW anti-corruption commission has to date really only produced ‘conservative’ scalps. When, and there is always a ‘when’, Labor returns to power in NSW, would a NSW Commission publicly destroy Labor power figures?
But when in power maybe Labor would ‘undo’ the Commission’s powers they currently crave. Certainly in Victoria there has long been criticism of Victoria’s anti-corruption watchdog being short of powers and funding under the Andrews Labor regime.
But as this political game plays out, particularly during this election campaign, what remains stalled is progress on a federal anti-corruption commission.