Proposal for a Federal ICAC

Before we seek to establish new bureaucracies and before we seek to make substantial changes to our law enforcement structure we should have a problem that we need to act upon. We should have evidence that there is an issue before we go about spending lots of money, before we go about replicating processes that are already in place and, most importantly, before we go about reducing the normal law enforcement practices that exist in this country and the restrictions that are placed around them.

I did not catch all of Senator Rhiannon's contribution but I just do not see that kind of corruption problem in this country at a federal level. Yes, there have been high-profile issues at the state government level and, yes, those issues have involved people and members from all political parties; however, we have not had that evidence presented at a federal level and we should have that in view, if we are going to make a decision of this significance. We should take some pride in this country that we are ranked very highly in the world for our lack of corruption.

Transparency International, I believe, is one of the more renowned bodies in this field that assesses these issues, and Australia is ranked ninth out of 177 countries on corruption issues. So we are very, very highly ranked throughout the world on these issues. We are equal with Canada on that table. We are above many advanced economies such as Germany, the United Kingdom, France and the United States. So, again, there is no evidence that there is a great problem with corruption in our government or bureaucracies.

There is more evidence in the World Economic Forum Global Competitiveness Report 2013-14. That report asked businesses that do business in Australia what limits them from acting or conducting their business in a free and open way. Corruption was listed by those businesses as equal last in terms of the issues that they face with crime and theft, and corruption was mentioned by only just half a per cent of those surveyed.

Some of the other issues, which are quite interesting here in this regard, that are much more significant include restrictive labour regulations—that was mentioned by 17.3 per cent of businesses in this World Economic Forum survey—as a barrier to doing business; and 13.4 per cent suggested inefficient government bureaucracy.

I think the proposal here from the Greens is about creating more bureaucracy and, to the extent that our current bureaucracies are not living up to best practice or best standards, we should surely be focused on making sure that happens first before we go about creating new bureaucracies.

I note for interest that 13.3 per cent of businesses mentioned tax rates, which fortunately this government has helped to get down.—although I know my colleague Senator McGrath wants to increase some of those tax rates but to reduce other taxes.

Senator McGrath interjecting—

Sorry, that is true. Sorry, Senator McGrath is going to get rid of other taxes—and regulations were mentioned by 11.4 per cent of people. I spoke yesterday in the chamber about the government's focus on reducing red tape and regulation. So we are going about tackling those issues first which are most keenly felt by businesses, and that should be our approach.

In saying all of that, we do not get that result without taking the issue of corruption very seriously. There is no doubt there is still a risk of that occurring wherever there are funds spent, people are looking after other people's moneys and decisions are made which help people make money. It is a very high risk that we must always be wary of, and the government has a zero tolerance approach to corruption. We have bodies in place already to try to root that out.

The primary body at the federal level is the Australian Commission for Law Enforcement Integrity. It works with the Australian Crime Commission, the Australian Customs and Border Protection Service and the Australian Federal Police to make sure that corruption does not exist in those organisations. Most importantly, that multiagency approach has helped keep our governance relatively clean and at those high standards across the world.

It is important to note that the Australian government is strengthening those protections, and decisions made by this government and the previous government have helped to do that. Last year we expanded the jurisdiction of the Australian Commission for Law Enforcement Integrity to cover AUSTRAC, CrimTrac and certain aspects of the Department of Agriculture. The government is also investing a further $1 million into the Australian Commission for Law Enforcement Integrity to help it stamp out corruption at Australia's borders—and there have been some incidents on our borders with regard to corruption.

Last year there was an arrest of an AFP officer in July following a 15-month investigation by the AFP and the Australian Commission for Law Enforcement Integrity. That particular officer has been charged with corruption related offences, so there is that ability to enforce the law and the law is being enforced right now with actual charges—I might come back to that later, if I have time. One of the key things is that people are actually brought before a court of law and charged, which does not always happen at the state level with their various bodies.

The government on 31 July this year added to the strength of this structure by formally establishing the Fraud and Anti-Corruption Centre to be located in the AFP headquarters. The FAC centre will deliver a whole-of-government fraud investigations training process to the AFP and it brings together various government organisations in this area that are exposed to these issues, including the Australian Taxation Office, the Australian Securities and Investments Commission, the Australian Crime Commission, the Department of Human Services, the Department of Foreign Affairs and Trade, the Australian Customs and Border Protection Service and the Department of Immigration and Citizenship. All of those bodies will be covered by this training at the new centre.

The centre will maintain a coordinated specialist cell that will collect, analyse and disseminate data from Commonwealth partners; engage with existing local intelligence initiatives; and work with financial intelligence agencies to assess, prioritise and respond to serious fraud and corruption matters.

Further to all of those announcements, the Commonwealth recently announced Task Force Pharos—I think it was the previous government—which will target corruption in the Australian Customs and Border Protection Service. This government has also established the Royal Commission into Trade Union Governance and Corruption, which is currently underway, so all of these matters are being dealt with at the federal level.

As I said at the beginning of my remarks, there does not seem to be evidence at the federal level of a problem. We need that evidence before we would have a response—or that should at least be the logical way we make policy the evidence based way.

I did note that Senator Rhiannon said that we needed more teeth in our law enforcement agencies to tackle corruption. Of course, more teeth in this case does mean that we would be weakening certain liberties and rights that people have when they are faced with a charge or when they appear before a law enforcement body. The way it works with ICAC and the Crime and Corruption Commission in Queensland, where I am from, is that those bodies have additional powers granted to them from their state parliaments to enforce the law and to try to expose corruption. I do note, though, that we as a parliament should be very careful before we would seek to weaken those protections for people from investigation from state officials. It is very serious to do such things. Right now this parliament is considering, in the various national security bills that are before this parliament, strengthening the arm of the law to investigate very serious offences relating to terrorism. That is a matter that we should consider very carefully, and we are doing that. These reforms have come out of various inquiries conducted by parliamentary committees. I note the Labor Party's bipartisan support for these processes, and we are also sending the bills to joint committees to make sure that those extra teeth, so to speak, for the law enforcement bodies relating to terrorism are justified.

I would like to note that the one party here that are not supporting those particular changes are the Greens. They have the major concerns about the changed. It is fair and reasonable for them to have those concerns and they should be considered. But they seem to be haphazardly wanting to increase the teeth, increase the power of the state over the individual and make it so that they have coercive powers. But on the other front, they reject out of hand the approach to deal with terrorism. I think that is quite ironic. If their approach to terrorism were applied in the same manner as their approach to corruption, they may not have such concern about these police powers as they currently have. I never thought I would see the day when the Greens would be the ones pushing for stronger powers for police, because that is effectively what this proposal advocates.

I am concerned about that because the powers that exist in those state bodies do a number of things. The most important power that ICAC and the CCC in Queensland, which was formerly the Crimes and Misconduct Commission—I know less about the Victorian body that has recently been established—have is to compel a witness to appear before their tribunal and to make them answer questions. A witness cannot, in the American vernacular or in our popular cultural vernacular, take the fifth. They cannot refuse to answer questions under oath. They are put under oath as a witness and they must answer questions truthfully. They do not have the right to not answer the questions. That is a particularly severe power. If you are in a position to incriminate yourself and you instead mislead such bodies, you will then be guilty of the offence of perjury. So people are put in a corner. They are not given the normal rights that we provide to witnesses, which have been an established fact of our common law since the Middle Ages in England.

These powers are akin to the star chambers that were set up by various kings of England at different times—at times to expose the great crime of being a Catholic, of being a papist and supporting the Pope in Rome. Those powers were enforced there to make sure that people had to answer questions on their various religious beliefs. Fortunately, over time, as parliamentary democracy emerged in England, those powers were removed and it became enshrined as part of our common law that you would not be compelled to incriminate yourself in a court of law under oath. But these state government bodies do away with those principles. As I say, sometimes that can be justified, but we must be very careful before we would so such a thing.

I would note that both those state government bodies, ICAC and the Crime and Corruption Commission in Queensland, emerged from specific and very serious examples of corruption in New South Wales and Queensland. In Queensland, the CMC—the precursor to the CCC—was created in response to the Fitzgerald inquiry in the 1980s. There were serious issues of corruption involved there regarding a political party that I am now a member of. That particular party, the National Party, or the coalition government at the time, established the CMC in response to the Fitzgerald inquiry. It sort of gets lost in history, but it should be noted that the Fitzgerald inquiry did not actually recommend the establishment of the CMC. While it was of course a hard-hitting inquiry into allegations of corruption in the then Queensland government, the inquiry itself did not recommend the establishment of a standing body to look into corruption. It did look at that matter but it concluded that it would be an abuse of the state's power to establish an ongoing body and that instead the state should set up bodies in response to specific issues—which is always the right of parliaments—through various royal commissions or other corruption inquiries. But, notwithstanding that recommendation, that body was created and it has lasted the test of time. The Queensland government has made various reforms to it recently in response to, in the first case, some very serious lapses of protocol on behalf of the CMC where certain evidence was released publicly inadvertently and also in response to, in my view, the vexatious and frivolous use of that body to air politically inspired charges.

Likewise, ICAC was created by a coalition government in the late 1980s, around the same time—I am not sure which was first. It was an election promise by then Liberal Leader of the Opposition in New South Wales, Nick Greiner. When he became Premier and established this body he said:

In recent years, in New South Wales we have seen: a Minister of the Crown gaoled for bribery; an inquiry into a second, and indeed a third, former Minister for alleged corruption; the former Chief Stipendiary Magistrate gaoled for perverting the course of justice; a former Commissioner of Police in the courts on a criminal charge; the former Deputy Commissioner of Police charged with bribery; a series of investigations and court cases involving judicial figures including a High Court Judge; and a disturbing number of dismissals, retirements and convictions of senior police officers …

I read that out to remind everyone that what we have seen in the last couple of years in New South Wales is not necessarily unprecedented. It has happened before; it is regrettable; and it must be dealt with appropriately. But these things do happen from time, even in a relatively clean country—with respect to corruption—like Australia, and there are various bodies at state level to deal with these issues.

Of course, the former Premier of New South Wales, Nick Greiner, eventually fell foul of an ICAC investigation, and there are various opinions on whether that was right or wrong. I was a little bit young to comment on it and do not know enough, but I think there is a lot of opinion out there that he was a very good Premier of New South Wales. He was subsequently cleared of any wrongdoing. Notwithstanding that fact, the political damage caused by the ICAC inquiry caused him to stand down for New South Wales to lose a very good Premier.

That brings me back to the point that I made at the start of this contribution—that is, that there are always risks in establishing new investigative bodies like this. We should not pretend that such bodies themselves cannot ever make mistakes or be subject to their own errors or particular biases and lapse into practices which perhaps are not maintaining the best standards. So I would be concerned if we were to jump to the establishment of such a body, particularly in an environment such as we are in at the moment, which is a charged environment—following the particular instances in New South Wales—and also in an environment where there has not been any detailed allegations of serious wrongdoing at a federal level.

I do note that in 2011—before I was here—we looked at this as a parliament. The Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity looked at whether or not such a body should be established federally. They recommended that the government should look at it. The then Labor government responded to that inquiry's recommendation and said:

The Government's approach to preventing corruption is based on the premise that no single body should be responsible. Instead, a strong constitutional foundation (the separation of powers and the rule of law) is enhanced by a range of bodies and government initiatives that promote accountability and transparency.

This distribution of responsibility creates a strong system of checks and balances.

I support that statement from the former Labor government. I believe that we do have a strong system of checks and balances federally. Part of those checks and balances, of course, is this place here which I stand in right now.

This chamber is a check and a balance on the executive government. This chamber is not run or dominated by government members. We have a record number of crossbenchers. This chamber is its own ruler and it always has the power to investigate any issue that relates to government—and, of course, any of those that may relate to serious offences of corruption. I believe that this chamber over time has done a good job at playing its role with respect to checks and balances. I do not see any major limitation on the powers of this body, the Senate, to carry out that role. I do not see the need at this time for an additional bureaucracy at the federal government level. But we should of course seek to improve and maintain the anti-corruption bodies and agencies that we have here in Canberra.

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