10 Things We Need To Consider When Talking About A Federal ICAC

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Jack Lang once said "where NSW goes, so goes the rest of the country."

Now that Operation Spicer is finishing up at the ICAC, and we have a shocking number of former Liberals on the cross-bench, two by-elections, a Labor Party still shell-shocked from revelations about crimes committed during its period in government and implications that the Federal Liberal Party was complicit in illegal political donations, there is a debate brewing about the need for a federal equivalent of the ICAC.

Most recently the NSW Labor Party passed a motion, moved by the influential power brokers Tony Sheldon and Sam Dastyari recommending that a policy to create a Federal ICAC be adopted at the National ALP Conference next year. It seems, at the moment, that political momentum is heading in that direction.

But we cannot have an uninformed discussion around this issue, so here is a list of 10 things that we need to consider in this debate.

1. The current system doesn't work

As much as there are assurances from Federal Members of both major political parties that bodies like the Australian Crime Commission or the Australian Commission for Law Enforcement Integrity are able to investigate and prosecute cases of corruption, the fact that they have not done so in decades points to their effectiveness. Gabrielle Appleby makes this point very clearly in The Drum.

2. Royal Commissions aren't the answer

At the moment the only way that could effectively investigate corruption at a federal level is if the government called a Royal Commission, where the government of the day would give the terms of reference. Considering that Royal Commissions are currently this government's preferred method of witch hunt, this system clearly does not amount to an effective anti-corruption body.

3. The model matters

In fact the debate about the structure and powers of a Federal ICAC are as important as the debate over having one in huge first place. Most states and territories have some anti-corruption body and their effectiveness wildly varies based on their structure. On the face of it the NSW model has been the most successful, though International examples like Hong Kong should be considered as important models.

4. Adaption is tricky

David Marr recently said on Insiders that we should have a Federal ICAC "the same model and the same powers as NSW." I am inclined to agree, however, that does not mean that there are not important distinctions between our state and federal levels of government that need to be considered in this debate. One example is the way an anti-corruption agency would deal with operational secrecy in departments like Defence and Immigration, challenges that are not apparent at a state level.

5. Who will it cover?

The most interesting question in adapting the NSW model federally will be about jurisdiction. The NSW ICAC covers state parliamentarians, local councillors, public servants, universities and state owned corporations. Deciding who falls under ICAC's jurisdiction will be an interesting process, the most radical suggestion is perhaps that we make an ICAC that covers ALL levels of government (though don't take that suggestion too seriously as my knowledge of constitutional law consists mostly of 'the Castle').

6. Public inquiries work

One of the biggest differences between NSW and other states (and one of the most controversial aspects of the NSW model) is the use of public inquiries into corruption in concert with private hearings. The theory behind them is that a crime committed in public life deserves a public hearing and that they act as a preventative measure against engaging in corruption. Critics say that it sometimes destroys the reputations of otherwise good politicians - and I'll get to that point later - but it is worth remembering that they allow for the public validation of honest politicians like Jodie McKay.

7. Prosecutions are a terrible measure of effectiveness

Another common criticism of the NSW model is that it has incredibly low conviction rate, and that therefore it does not work. These criticisms ignore the fact that ICAC is designed to uncover corruption and not to publish it, and that in order to properly investigate corruption it has to operate outside of the criminal justice system. Eddie Obeid may brag about how he is unlikely to be convicted, and he may well be, but you cannot argue that the damage to his public reputation, and the reputation of ICAC's victims has not been devastating.

8. The first rule of ICAC is that you do not lie to ICAC

One of the reasons that ICAC is so effective is that it turns so many witnesses, and this is in part because the conviction rate is so low and that the penalties for corruption in NSW are so weak. Lying to ICAC can get you a maximum of five years in prison, which is higher than having engaged in corruption and you are also much more likely to be convicted. This structure makes it in the best interest of witnesses to give honest accounts of what happened, even if it hugely implicate themselves. This aspect should be central to a federal model.

9. Corruption is not simply a moral failing

We have this very conservative idea of corruption that it is simply the result of 'a fewer bad apples.' But this is patently false, and a convenient way to avoid difficult discussions about institutional failing. Corruption is a cultural and structural problem - it operates within and through structures of power that allow it to occur, and preventing corruption is about correcting these cultural and structural issues. This is how we should approach all discussion of corruption and also, while I'm at it, internal party reform in the wake of ICAC.

10. The Labor Party should be leading this issue

At a basic level, corruption is the undue influence of capital on the political process, and it is inherently in the interest in the party of labour to act against it. A Federal ICAC is consistent with the Labor mission of a fairer and more just society, and if we do not embrace a federal ICAC we leave a popular and necessary policy to the anti-political minor parties.


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