Double speak

There is a stark discrepancy between Labor’s motherhood statements on integrity and its actions on union thuggery and industry super transparency. By Amanda Stoker.

Federal parliament resumed this week amid big talk from Attorney-General Mark Dreyfus about delivering a national anti-corruption commission by the end of the year. In a masterclass on the politics of diversion, Labor is simultaneously moving to abolish the construction industry watchdog and remove transparency measures that the Coalition imposed on the superannuation industry.

The Australian Building and Construction Commission tackled the union thuggery that adversely affects working people’s ability to choose freely whether to associate with a union. That lawlessness harms productivity, and with it job security and wage growth. In a slap to construction workers and integrity, Labor is poised to scrap it.

Assistant Treasurer and Minister for Financial Services Stephen Jones has made it clear that Labor will roll back the Coalition’s super transparency reforms, which require super funds to ensure that member savings are used in the members’ best interests, and disclose the use of member funds for marketing, political donations, payments to industry bodies and payments to related parties like unions before each AGM.

Jones couched this reduction in transparency in the language of “respecting Australians’ choices”. On any measure, wrapping the cloak of secrecy around Labor’s mates in the super industry disrespects Australians’ right to make fully informed investment choices.

The contrast between their talk on the anti-corruption commission and its actions in construction and super is stark and hypocritical.

There are just six non-budget sitting weeks between now and the end of the year. Yet, despite announcing its seven principles for an anti-corruption commission in January 2018, Labor still hasn’t produced anything more than motherhood statements in its “design principles”.

The last time Labor was doing rush jobs on accountability legislation, we got the dog’s breakfast that is the Public Interest Disclosure Act 2013.

For Dreyfus to deliver on Labor’s promise as to timing, the bill cannot possibly get the consultation a measure like this deserves. Bodies of this nature have a track record of themselves perpetrating injustice, which means the detail of design and oversight are critical.

Anyone needing proof of this proposition need only glance at the shopping list of overreach and reputations unfairly destroyed to emerge from the NSW Independent Commission Against Corruption.

In NSW, public hearings are used without consideration of whether doing so would unfairly tarnish reputations without substantiating a likely criminal offence, or unduly prejudice the ability of a future defendant to get a fair trial.

Ask Margaret Cunneen, SC, Richard Poole or Mike Gallacher about the reputational damage that such a process can inflict. Each faced ICAC public hearings and widespread adverse media coverage, yet was never prosecuted, let alone convicted.

There are many more just like them. The NSW ICAC has no process for public exoneration when it makes mistakes, or compensation for reputational destruction. Nothing in Labor’s principles for a federal anti-corruption commission suggests it would provide fairness on this front.

There is no avenue for review of the merits of a decision of the ICAC, so when it makes a mistake it can be extremely difficult to clear one’s name. Appeals processes are vital to the fairness of the criminal justice process and without it the architecture of ICAC carries a dangerous assumption: that it is incapable of error.

Yet, there’s no indication that a merits review process will be forthcoming in the national anti-corruption commission.

The danger of integrity commissions designed like ICAC is that they play the role of investigator and decision-maker in a fusion of the roles that the criminal justice system deliberately separates. This ensures the impartiality of the judiciary isn’t undermined by being too invested in the investigation.

In the ICAC the rules of evidence do not apply, diminishing the reliability of the evidence it uses to make its findings of corrupt conduct. A witness can be compelled to attend and give evidence, even where that evidence may incriminate them. Such concepts are anathema to the fairness of the criminal law.

The NSW ICAC can issue a finding of “corrupt conduct” for conduct falling well short of the public’s perception of what constitutes corruption. Australians hear “corruption” and envisage a brown paper bag full of cash, even when the label has been applied in relation to conduct that could give rise to a mere perception of partiality even when in fact there has been no fraud, dishonesty or breach of public trust.

Corporate Australia should also take note – the definition of corrupt conduct supported by Helen Haines or the Greens would see corporate and other bodies providing goods or services to government within its remit. Corporate reputations, as well as that of the individuals who work in them, will be equally vulnerable. It won’t be just politicians who are dragged through the mud.

We all want to see more honesty and accountability from those who lead us. Yet poorly designed anti-corruption bodies are capable of inflicting great harm to individual liberties and public institutions without achieving the laudable goal of improving public administration processes.

Given Labor’s double-talk on matters of integrity, we should not be confident the right balance will be struck.

Amanda Stoker is a former Senator for Queensland and a distinguished fellow of the Menzies Research Centre.