Christian Porter’s blind trust, Barnaby Joyce’s $32,000 a day expenses as Drought Envoy, Angus Taylor’s Cayman Islands intrigue, Bridget McKenzie’s Sports Rorts, Scott Morrison’s suite of secret ministries, the Leppington Triangle Affair, tens of billions blown to smithereens in Defence spending. What will we get to see from a Federal ICAC, the National Anti-Corruption Commission (NACC)? Quite possibly none of that. Michael West talks with leading rortologist and former bureaucrat Jommy Tee.
The government *is* the government. If it chose to investigate say Barnaby’s expenses or who got the $80m for the water rights from the company Angus Taylor kicked off in the Cayman Islands, it could demand information from the bureaucracy right now.
Yet there is far too little appetite for transparency in government, and government secrecy is a deep an enduring problem for our democracy. Transparency is a dull word but absolutely vital. That’s why, when in opposition, the government promised a “transparent” integrity commission. That’s also why the decision to hold NACC hearings in secret is the single most disappointing feature of the proposed legislation.
It should be said that Labor has delivered on its commitment for a Federal ICAC, and there is much in the proposal to admire, as we have observed. Unless however they rip out the “Dutton Clause”, that NACC hearings will only be public in “exceptional circumstances”, the power of the NACC to curb corruption and restore confidence in government will be seriously compromised. We put it to the test with Jommy Tee shortly – with a few celebrated examples of alleged shenanigans involving Scomo, Angus, Barnaby, Bridget and co, things which might be considered for investigation (we make no allegations here of corruption, merely of public interest for inquiry).
Meantime to this week’s politics. Again, it bobbed up this week as the principle concern of critics of the draft laws when Sarah Chidgey, deputy secretary in Attorney-General’s Department, the bureaucrat in charge of the legislative process, was grilled in Senate hearings by the likes of independent Helen Haines and Greens senator David Shoebridge.
The pressure is on for the Dutton clause to be excised, not just from the cross-bench but from a range of eminent legal observers, and when Chidgey was challenged by Haines on “exceptional circumstances” her response was far from compelling.
"Unfair damage to reputation" seems the reason why corruption hearing will be in held in secret . #NACC "exceptional circumstances" explained here at National Anti-Corruption Commission Legislation inquiry#Transparency #corruption pic.twitter.com/3jX6Co4usF
— Step and fetch (@FetchStep) October 19, 2022
The commissioner already has “public interest” as a test, like NSW ICAC. Lobbing “exceptional circumstances” into the mix – a hazy term with no legal precedent or certainty just means the first effort to hold public hearings on a matter of public interest would be dragged straight off to the High Court at public expense.
The final outcome will of course depend on the final laws, laws now being debated in draft by the NACC committee of parliamentarians. Yet, on the face of it, we might never get to see much of what goes on at NACC at all, perhaps only in the exceptional circumstances that is when the Commonwealth DPP opts to press criminal charges.
The hurdles are too high. We talked at length with former public servant and social media rorts investigator Jommy Tee; and together we were hard pressed to come up with one government scandal sure to see the light of day.
There are 100 rorts here in our Q.E.D almanac of federal rorts. Would any be made public in NACC hearings?
“I would be hard-pressed to see NACC investigating issues already referred to AFP, such as the Angus Taylor/Clover Moore document saga or the Leppington Triangle purchase (land worth $3m sold to government by a party donor for $30m),” says Jommy Tee.
“Ditto, hard pressed to see them going too far back in time to investigate historic issues, probably preferring to focus on recently elapsed scandals. NACC might not be operational and able to start an investigation until late 2023 at the earliest.
Abused but not illegal
“Grants programs: I’d be surprised if many of these would be investigated, mainly because the various program guidelines enable ministerial discretion, which was ruthlessly abused by Ministers, but not illegal.
“The Explanatory Memorandum for the NACC Bill, suggests that grants announced as part of election commitments may not meet the test for investigation (see 2.14 and 2.19 of EM), that would appear to rule out the election slush fund, Community Development Grants.
“Only two historic grants programs might be investigated, Sports Rorts and maybe Building Better Regions Fund. Reason? Multiple rounds (3 rounds in Sports rorts and 5 rounds in BBRF), multiple abuses, a large amount of money involved, scathing ANAO reports, pointing to systemic failure and importantly suspicious behaviour.
“Sports Rorts is the iconic one, probably easy pickings for a NACC to revisit.”
Jommy, who broke a number of stories on regional rorts for MWM notes that there is a footnote in the ANAO report suggesting that improper interference between one entity (where a former ministerial adviser worked) and then Minister’s office. The entity then ended up with a grant despite not being recommended by the Department. The grant scored 24 out of 40 in Round 5. That score ranked it equal last but it got funded.
Is that public interest? Yes, it involves public money. Is it criminal charges territory? Hardly.
Dodgy tenders not exceptional at all
Jommy believes it is line-ball whether NACC would investigate dodgy tenders and procurement, unless the Commissioner had strong suspicions of officials or politicians being corrupt. Even then, dodgy tenders are de rigeur not exceptional.
“The NACC will probably have a moderate deterrence effect to prevent future corrupt behaviour.
The power of the NSW ICAC is the recordings presented at public hearings, to get those recordings NSW ICAC must’ve had some suspicions beforehand and hence taped persons of interest. “All the existing examples of possible corrupt behaviour at the federal level mean it’s probably too late for that as the money has gone out the door, the horse (issue) has bolted.
“Hence, as yet unearthed corruption is likely where gains will be made, where there is more chance to surveil “real time” corruption as opposed to historic corruption.”
It is now up to the cross-bench to deliver and axe the exceptional circumstances clause but, as Labor and the Coalition have the numbers, it is likely we will see a Secret National Anti-Corruption Commission, a SNACC not a NACC.
The NSW ICAC is not the same model. The Commissioner decided on public interest whether hearings will be public, not exceptional circumstances. Under the NACC model, Gladys Berejiklian would still be premier of NSW. Only 5% of hearings are public. Victoria’s IBAC has held just 9 public hearings since 2013.
Nor will the findings of the secret hearings necessarily be made public under the draft legislation, with Labor charging the commission to only “refer findings that could constitute criminal conduct to the Australian Federal Police or the Commonwealth Director of Public Prosecutions.”
Although there is more discretion for the independent commissioner, even final reports being made public can be challenged, and must be at the Commission’s discretion.
The draft legislation on publishing reports
222 Publishing NACC investigation report in whole or in part
(1) The Inspector may publish the whole or a part of a NACC investigation report if:
(a) the Inspector has given the Commissioner the NACC investigation report under subsection 220(1); and
(b) the Inspector is satisfied that it is in the public interest to publish the whole or the part of the report (as the case may be).
(2) This section is subject to section 223.
223 Opportunity to respond must be given before publishing a NACC investigation report containing critical opinions etc.
(1) This section applies to a NACC investigation report that:
(a) has not been tabled in Parliament; and
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.