On 20 November 2019, the Federal Attorney General, the Hon Christian Porter MP, addressed the National Press Club. His speech canvassed a wide range of issues, however, the one that rang a chord with me, was his thoughts about a proposed Commonwealth Integrity Commission.
Few people would argue with the value of a body that provides oversight over government and those who interface with it. Many states have their own so-called integrity bodies such as the Independent Commission Against Corruption of NSW (NSW ICAC). However, as Christian Porter states, many of these bodies “have fallen well short of long accepted standards of justice and fairness”. There is no presumption of innocence. The mere footage of an individual walking into a public hearing carries with it a stigma that can never be erased.
Some of these bodies hold public hearings as part of their inquiry process. These are an opportunity for counsel assisting to make allegations with statutory protection from defamation. These allegations regularly ruin the reputations of anyone unfortunate enough to be called to give evidence, even if they are not a person of interest. With this, the rights of the individual are irrecoverably removed.
The NSW ICAC currently has statutory protection to make findings in relation to criminality. These findings should be made to the criminal standard of “beyond reasonable doubt” rather than the civil standard of “balance of probabilities”. Anything less is just a licence to defame. Allegations are made that never withstand the scrutiny of the justice system. This is the reason they have a reputation as “toothless tigers”.
Allegations are published as truth. Evocative language by counsel assisting dominates news cycles. It is an intoxicating mix and creates a temptation for counsel to push the boundaries rather than be more measured in their approach.
As a former NSW ICAC Commissioner said in relation to inquisitorial bodies, that it “is fantastic, you are not confined by the rules of evidence, you have a free kick, you can go anywhere you want to go and it’s a lot of fun”.
When the Inspector of the NSW ICAC Mr Bruce McClintock SC was recently asked what impact the appointment of a zealot to run the ICAC would have, he responded “If you appoint people like that you will have problems”.
When referring to the improvements he has seen in the NSW ICAC in recent years Mr McClintock said that “I think the choice of counsel assisting is being done differently and better, which I think has cured, resolved or removed a whole series of problems that were there”.
Christian Porter points out that the legislative framework needs to be crafted with great care. He identifies that we need to learn from the failures of many of the state based ICAC’s where “reputations have been unfairly damaged”.
Sadly, there have been some recent glaring examples that justify these concerns.
The outrageous pursuit of Margaret Cunneen in 2014 by the NSW ICAC backfired spectacularly when the High Court ruled that the case did not even sit within their jurisdiction.
ICAC’s response was to issue a press release (long since removed from their website) that effectively claimed the High Court “got it wrong”. It was like a dentist claiming they should still be allowed to conduct brain surgery. Organisational arrogance somehow allowed them to justify in their own minds conduct that was outside their powers.
In my case, I had always placed great faith in both the NSW ICAC and the individuals associated with it. Unfortunately, my trust was betrayed.
In 2014, the ICAC held a public inquiry into political donations during the 2011 NSW state election. I was a newly elected MP at that election. Along with many other state MPs at the time, I was asked to give evidence in private about my campaign.
As an MP, and as a father, I was determined to be utterly truthful and transparent. I gathered all relevant documents together and provided a statement to Counsel Assisting that outlined matters in my campaign that may be relevant to the inquiry.
What happened next is on the public record.
I was invited to attend counsel assisting’s chambers. Counsel assisting served two bottles of wine to the people present including ICAC staff. Counsel assisting told me he would stake his reputation on protecting my reputation. I was given a written undertaking that this information would not be used against me.
Unbelievably it was.
Ultimately, despite all of the wild allegations, I was cleared. However, this took four long years.
The model being proposed by the federal government is one where the new organisation will be tasked with building a brief of evidence to send to the Commonwealth Director of Public Prosecutions rather than making value judgements on individual’s conduct.
I believe this will result in improved oversight of government without trampling over the rights of individuals as we have seen in NSW.
It is just over 800 years since the Magna Carta was signed by King John of England establishing inalienable rights to citizens that still exist today. These rights have been grimly defended over the subsequent centuries and should not be abandoned to pander political opportunism.
I look forward to the federal parliament following the counsel of the Attorney General and creating an organisation befitting our democracy.
Andrew Cornwell is a former NSW MP for the seat of Charlestown. His opinions are his own.