news, act-politics

The ACT Integrity Commission could be forced to keep its hearings behind closed doors or face lengthy delays if corrupt officials are able to object to public hearings, a former judge has warned. An exposure draft of legislation to establish the corruption watchdog will be tabled when the ACT's parliament sits this week. But while the commissioner will have broad powers, including the ability to authorise sting operations, surveillance and fake identities as part of its investigations, their decision to examine witnesses in public can be challenged because of its indirect impact on the ACT's Human Rights Act. Section 21 of the Act gives everyone the right to a fair trial, and while the integrity commission is not a court or tribunal, publicly airing allegations of corruption could damage the fairness and impartiality of a jury trial should criminal charges be laid, the government says. As such, those under a cloud can push to have their evidence heard in private, even after the commissioner has decided the hearings should be public. Even their case for a private hearing must be listened to and decided behind closed doors, unless the commission reasonably believes the request is vexatious or without merit. But Stephen Charles QC said that provision has been used by suspects with deep pockets to avoid scrutiny in Victoria. Mr Charles chaired a panel of four experts that advised ex-Victorian premier Ted Baillieu on the creation of the Independent Broad-based Anti-corruption Commission. He is also the chair of left-wing thinktank the Australia Institute's National Integrity Committee, which is pushing for a national integrity body. However Mr Charles believes Victoria's IBAC is deeply flawed, with a narrow definition of corruption, too few teeth, and limited scope to hold public hearings. "One of a corruption commission's prime functions is to expose corruption to the public. One of the reasons you have public hearings is so the community becomes aware of what's going on," Mr Charles said. "Whenever you've got a suspect or someone with a fair amount of money or influence, they go to court to stop the public hearing. The commission then has to expose to the court and the suspect what their grounds are and how far their investigation has gone." While the NSW Independent Commission Against Corruption has broad powers to hold public hearings, Victoria's IBAC can only do so if there are exceptional circumstances, if the matter passes a public interest test, and if the hearing won't cause unreasonable damage to a person's reputation, safety or wellbeing. Mr Charles said there has only been five public IBAC hearings in the past five years, whereas ICAC holds one roughly every month. "As it's happened in Victoria, the only way to avoid unreasonable damage is to have made a full investigation beforehand, with private hearings in-camera so you know exactly who is the person you correctly suspect of corruption," Mr Charles said. However Mr Charles said there were many complaints about the NSW commission, a "fair amount" of them reasonable. The ACT's commissioner will be accountable to a part-time inspector, who will have unfettered access to the commission's staff and documents. The commissioner will have to write to the inspector seven days out if they want to hold public hearings, and prove there is public interest in airing the allegations more widely. In deciding whether it is in the public interest, the commission must weigh up the seriousness of the matter and whether the conduct was isolated or more systemic in nature. Like the integrity commissioner, the inspector will be appointed by Speaker Joy Burch in consultation with Chief Minister Andrew Barr, Opposition leader Alistair Coe and Greens leader Shane Rattenbury. A cross-party Select Committee will monitor both the inspector and the commissioner, and the Speaker can suspend them for misbehaviour, or mental or physical incapacity. The NSW ICAC also has an inspector, although they are appointed by the state's governor-general. However former NSW inspector David Levine previously called for ICAC to be stripped of its power to hold public hearings "to prevent the undeserved trashing of reputations". Mr Charles said the oversight of the inspector should be enough in most circumstances to ensure the commissioner's wideranging powers were being used appropriately. The former Court of Appeals judge also expressed reservations about the ACT's narrow definition of corruption. According to the draft legislation, conduct by a public official is only considered corrupt if it is illegal or would be grounds for serious disciplinary action. "If you think back to WA Inc. under Brian Burke, some big companies made huge donations to government and the consequence was every time they had something they wanted to do, a building they wanted to put up, if they put a submission in, they got it. It's very difficult to tie that to a criminal offence," Mr Charles said. "Corruption follows from the ability to use money, power and influence, and goes wider than criminal offences, that's why anti-corruption commission has to be wider than indictable offences."

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