ICAC High Court Case An Opportunity For Labor

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Recently, the High Court has dramatically tightened the powers of the NSW Independent Commission Against Corruption (ICAC) to investigate corruption.

In the case of ICAC v Cunneen, a majority of the High Court ruled that ICAC had no power to conduct an inquiry into allegations that Margaret Cunneen (Deputy Crown Prosecutor) had counseled her eldest son’s girlfriend to pretend to have “chest pains” so that police were prevented from taking a blood alcohol level at the scene of a car accident.

While the decision has wider ramifications for ICAC, the upshot is that ICAC will only be able to investigate instances of corruption where a public official failed to act with “probity” while exercising their official functions. This places a big restriction on ICAC’s powers.

Whether the High Court got this decision right or not on the law, ICAC v Cunneen represents a fantastic opportunity for the Labor party to seize back the momentum on issues of public accountability and transparency, and advocate for the restoration of ICAC’s powers. 

To demonstrate why, here’s an example:

Imagine if a group of property developers colluded on the price of a big government tender, to ensure a higher price overall (whoever won the tender). Now, as long as the government officials who made a decision on the tender acted with probity (even though the whole processes was rorted from the start) then ICAC has no jurisdiction over the incident. 

This is clearly unsatisfactory. Given the problems with corruption in the past, ICAC should not be limited to circumstances where the probity of a public official is in question. Corruption, by nature, often involves secrecy, bribery, and multiple layers of involvement.  In any given case of corruption, the involvement of a public official may vary in seriousness and moral turpitude.  Because of this complexity, it is not acceptable that each and every investigation of corruption must be carefully limited, where a more vigorous and wide-reaching investigation may be necessary to uncover the truth. 

On top of this, the High Court decision now opens each ICAC investigation to easy legal challenges well-resourced litigants. Even now, past investigations have been called into question. 

A weakened ICAC does not benefit the public. 

Labor must act on a policy front to ensure that ICAC has the power to investigate illegal collusion, fraud, and other corrupt conduct, even where the public official involved has acted with probity. The public have an interest in ensuring government processes and decisions are made with complete integrity, irrespective of whether the public official themselves fully understood or appreciated the impact had on their official functions. 

ICAC not enough

However, the restoration of ICAC alone is not be enough. The time has come for Labor to investigate the current suite of various state and federal ombudsman services. Ombudsman services are tasked with the “oversight” of a variety of industries, including the Financial Services Ombudsman, the Aged Care Commissioner, and the Overseas Students Ombudsman (to name just a few).

Given the many public scandals that have befallen the financial services industry and the university sector, the question must be asked: are they providing the greatest value to the public? Do they have enough “teeth” to investigate their relevant jurisdiction, whether it be rogue employers, landlords, or financial advisors who break the law and hurt the public? 

Ombudsman bodies are generally confined to conducting investigations or issuing warnings, and do not have the broad powers of a Commission of Inquiry. However, if anything, ICAC has demonstrated how effective a public inquiry can be to expose and “shame” illegal and immoral conduct. 

If the powers of some ombudsman services were to be expanded, and given more vigorous powers to investigate illegal and unethical activity, this might represent better value for tax-payers in the long term.

For instance, while the Fair Work Ombudsman has the power to investigate employers who engage in illegal activity, and even commence litigation, they do not operate as a public inquiry or have the wide-ranging investigation powers of an ICAC-style body.

If the Fair Work Ombudsman had the power to conduct ICAC-style public inquiries into gross violations of industrial laws, and make recommendations to bodies for prosecution, this might improve their ability to expose illegal activity of employers in the Australian workplace. 

Of course, such an initiative could be funded with the money saved from the re-abolition of the Australian Building and Construction Commission.

ICAC v Cunneen is a great opportunity for Labor. We must use the power of government inquiries and commissions for their proper purpose, to pursue the interests and needs of the Australian public.  Let’s lead public debate on this issue, and safeguard the public against corruption and illegal activity. 

In the past, conservative governments have abused the powerful tool of government inquiries to attack and destroy their political enemies. Indeed, it was Liberal premier Nick Greiner who founded ICAC in an effort to expose alleged corruption within Labor. 

Right now, the current federal government have pursued public inquiries for political purposes. The Royal Commission into trade unions, the parliamentary inquiry into the tax deductibility status of environmental groups Register, the Australian Building and Construction Commission are the most obvious examples. 

However, these abuses of public commissions and inquiries should not deter Labor. Our policy platform must include restoring ICAC’s powers, and improve our standing with the public on issues of accountability and transparency.  


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