John Brumby and Joe Sestak

The Victorian government’s reversal of policy on a state anti-corruption commission will be popular with voters and the media. Such bodies are useful but some scepticism is warranted. There is danger in encouraging a judicialisation of politics, judicial bodies and judges are skilled at certain things but not necessarily at public policy. The Victorian Bushfire Royal Commission has accumulated a vast mass of valuable evidence but this should not make its recommendations exempt from scrutiny, even if in practice they will be. Why didn’t it include a historian?

The downfall of Nick Greiner when the NSW Independent Commission Against Corruption judged his behaviour in offering a appointed position to an independent MP to encourage his resignation as ‘corrupt’ should be a cautionary example. Greiner appealed the finding:

Of note is the New South Wales Court of Appeal decision in Greiner and Moore v Independent Commission Against Corruption. Greiner v ICAC (1992) 28 NSWLR 125. This court case concerned an ICAC inquiry into the appointment of a former member of the Liberal Party and Minister of that Government, Dr Metherell, to a senior public service position as an alleged inducement to resign his parliamentary seat. The former Premier (Mr Greiner) and former Minister (Mr Moore) appealed the decision in the Supreme Court of New South Wales and a judgment was brought down that the ICAC’s finding was made without, or in excess of jurisdiction, was a nullity, and was wrong in law.
In 1994 the Parliament passed an amendment to the Independent Commission Against Corruption Act 1988 in response to continued debate following this decision. The ensuring amendment to correct this anomaly expanded the jurisdiction of the Commission in relation to Ministers of the Crown and members of Parliament. This expanded jurisdiction enables the ICAC to investigate an allegation that a Minister or member of Parliament has breached a code of conduct applicable to that Minister or member, if the alleged breach was substantially of a corrupt nature

I consider that such matters should be left up to Parliament, at this time independent Mps held the balance of power in the NSW Parliament, and forced Greiner’s resignation, but rather than making their own independent judgment that his conduct had been unworthy of a premier, who they were certainly entitled to do, they claimed the sanction of ICAC. We can compare this to the manufactured American controversy about Joe Sestak, as does an excited and muddled Brad Norington, but an commentator from the conservative American Enterprise Institute correctly observes:

I am struck—and bemused—by the kerfluffle over the job offer by the Obama administration to Joe Sestak, which turns out to have been an offer of a part-time advisory board post to keep him in the House, not the position of Secretary of the Navy as widely speculated. The story has gotten inordinate press attention, and generated a tough letter from all the Republicans on the Senate Judiciary Committee, suggesting possible criminal behavior and calling for a special prosecutor, as well as the assertion by Republican Rep. Darrell Issa of California, the ranking member of the House Oversight and Government Reform Committee, that such an offer might constitute an impeachable offense. Why am I struck and bemused? Because to any veteran of the political process, such offers are nearly routine across every administration. If what the Obama administration did was impeachable, then Rep. Issa might want to consider retroactive impeachment action against Ronald Reagan, whose White House directly suggested to S.I. Hayakawa that he would get an administration position if he would stay out of the Republican primary for Senate in California; or call for an investigation and special prosecutor of the Bush White House for discussing a Cabinet post with Democratic Senator Ben Nelson of Nebraska to clear the field for their preferred Republican candidate Mike Johanns in 2006. At the same time, Issa might want to call for expulsion of his Senate colleague Judd Gregg, who insisted before he accepted the post of Commerce Secretary in the Obama administration that there be a guarantee that his successor, appointed by a Democratic governor, be a Republican. That opposition lawmakers would talk about special prosecutors and impeachment is not surprising; that too has become almost routine in recent years. But I would hope that veteran reporters and editors would at least put these stories into context. To be sure, the Obama White House mishandled the story by refusing to comment for a long time—as one keen observer said, “Don’t look guilty when you are innocent.” But it tells us a lot about the nature of contemporary journalism that a non-story gets prominent and uncritical attention without any attempt to put it in its proper place.

Bodies such as the ICAC are entitled to make findings of corruption and even to rely in making these judgments on weaker evidentiary standards than would apply to criminal persecutions. Reasonable suspicion of corrupt activity should be a factor in determining person’s fitness to hold public office or to exercise authority on behalf of the state but it has to be real corrupt activity. Oddly Royal Commissions have sometimes been reluctant to make such findings when there is clear evidence. Chris Merritt excitedly declares:

The reality is that this commissioner looks like being vested with independent powers that should make dodgy MPs quake in their boots. While that is highly desirable, the downside is that it involves a serious erosion of the concept of parliamentary supremacy. Instead of trusting parliament to keep its own house in order, the new system will subject parliamentarians to independent oversight. The parliamentary integrity commissioner will have the power to decide which minor matters go to the privileges committee and which serious matters should be referred to other arms of the proposed anti-corruption network.

No doubt Victorian equivalents of the hapless Karyn Paluzzano will be identified. No wonder the Victorian Police Association is pleased with the government’s reforms. More broadly do we want to see the rise of ‘revelation investigation prosecution’ as a standard aspect of Australian politics?

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