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Whatsapp We are allowing corruption to undermine society while doing little or nothing about it, argues Geoffrey Watson.

If corruption does not exist in Australia's federal sector, it would make Canberra the only corruption-free place in the world, Geoffrey Watson argues. In this lecture, the former ICAC counsel calls for the creation of a strong and independent federal anti-corruption commission.

As a community we have entered a social compact under which we have entrusted our future, and our children's future, to our government. I do not mean just politicians or elected government officials, I include all those public officials working in government-related offices—we have entrusted this responsibility to them as well. This is where a relatively wealthy country like Australia has an advantage over most of the world—we are able to remunerate our public officials, if not handsomely, at least sufficiently.

It is said 'Australia is open for business'. Are we willing to accept corruption as just part of the price of doing business in Australia?

I would think that Australia's expectations were neither unrealistic nor too demanding. We are not asking for perfection from our public officials. All we want is for government decision making to be considered, and we want it to be fair, and we want our decisions makers and their decisions not to be corrupt.

I am satisfied, based upon my work over four years with the two premier anti-corruption bodies in New South Wales—the Independent Commission Against Corruption (ICAC) and the Police Integrity Commission—that we are grossly underestimating the nature and extent of corruption, and in our ignorance we are failing to compile sufficient information so that we can understand and assess its effects on our community.

All we know is enough to suggest that there is a serious problem. My experience is based upon the 10 or so occasions when I have been asked to act as counsel assisting those agencies. Some of these ended in public inquiries. The truth is that public inquiries are only a small part of the real work of an anti-corruption agency. It is easy to overlook that the principal purpose of each agency is investigative. Most of the work occurs away from the public eye. In an investigation your work proceeds slowly but surely. Leads are followed, more evidence is uncovered, and occasionally you strike gold.

Without wishing to part with too many trade secrets, I can tell you that the job of a good interrogator is to make the person who is being questioned fear the prospect that the interrogator already knows the answer to the questions. This is because lying to anti-corruption agencies carries a hefty penalty. A good interrogator will create the impression that much is already known. The truth is usually the opposite. It has been my experience, time after time, that we were shocked at what we were learning. Not even the hard-bitten investigators at the NSW ICAC were ready for the size and the complexity of the corrupt conspiracies we were uncovering.

But are we doing enough? I would answer that no, emphatically no. Not only are we not doing enough, we are going backwards. Several of the states have had anti-corruption agencies, and it is worth noting what has happened to them over the years. They are vulnerable to attack and they are under attack.

Agencies attacked in Queensland and NSW

In Queensland, the Crime and Misconduct Commission was set up as a result of the Fitzgerald inquiry. It functioned effectively from 1989 until 2014 when its powers were altered by the former Newman government. Then attorney-general Jarrod Bleijie justified the changes by claiming that 'over the years we have seen the CMC used as a political football by the Labor Party and what we want to do is stop that from happening'. Others saw different motives. The former federal court judge, Doug Drummond QC, had acted as a CMC commissioner. He read the amendments and said they were designed to allow the ruling National Liberal Party to raise campaign funds unimpeded by the attention of an anti-corruption body.

Tony Fitzgerald himself described the reforms as having the effect that 'Liberal National Party politicians will not have to worry about their conduct while opposition politicians will be at constant risk, just as they were in the pre-inquiry days when they were forced to defend government-funded defamation proceedings brought for the personal benefit of Liberal National politicians. The commission will be available for use as a political weapon'. He said that the alterations represented 'a gross abuse of power'.

In New South Wales, the position is different and presently controversial. Before I go into any detail, I wish to make a particular point clear. In a true display of cross-political cooperation, the NSW Parliament has repeatedly and unanimously voted to support the NSW ICAC and to support the fight against corruption. These decisions would not have been easy: you may know that each of the major parties in NSW has suffered directly under the hammer of ICAC over the last three or so years. I could imagine that ICAC was not popular in party meeting rooms. And yet those parties and their leaders, Mr Baird and Mr Foley, have demonstrated a total commitment to fighting corruption.

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Whatsapp Former senior counsel assisting the NSW Independent Commission Against Corruption, Geoffrey Watson SC, speaks at the Cranlana Programme 2015 Alumni Speaker Series.

In 2014 the New South Wales ICAC announced its intention to conduct a public inquiry into events involving a senior legal figure. At least superficially, the matters looked trivial—although we still do not know as the facts were not allowed to play out. The ICAC's power to conduct the investigation was challenged and the High Court held that the ICAC was acting well outside its statutory powers. The effect of that was to remove a substantial part of the ICAC's investigative and, thus, deterrent power. The parliament quickly acted in a way which, as I say, supported the ICAC and its work. But an important issue about the ICAC had been raised and the government has—in my book, entirely appropriately—appointed a review which will examine whether the New South Wales ICAC will continue and the extent of the powers which it will enjoy if it does continue.

The controversy has permitted all kinds of critics to attack the ICAC, many making wildly inaccurate criticisms. Some commentators have even called for its total abolition. Given our experience in New South Wales, and particularly given the long track record of the useful and important service by the ICAC in New South Wales, I believe that to be a foolish suggestion.

A call for the abolition of the ICAC jars with the international perception of the utility of the agency. As David Ipp pointed out in a statement to the NSW Parliament in 2014, the NSW ICAC is consulted by foreign governments on a near monthly basis to assist them in their fight against corruption. In 2013 the French anti-corruption commission sought the assistance of the NSW ICAC, acknowledging the NSW model reflected international 'best practice'.

Flawed models in Victoria and SA

There are now government anti-corruption agencies in most states, but the models for two of those agencies—the IBAC in Victoria, and the ICAC in South Australia—leave me unconvinced that politicians in those states are fully committed to fighting corruption.

Victoria has had the Independent Broad-based Anti-corruption Commission since 2011, and it has already proved effective. The effectiveness of the IBAC has come despite it not being given the proper powers or tools to fight corruption. When it was originally set up, the IBAC was not even able to investigate a matter if the only basis for complaint was that the conduct of a public official constituted the serious common law crime of misconduct in public office. That, surely, must have been an oversight. It remains the case that an IBAC investigation may only be commenced if, and only if, the commission is reasonably satisfied by the known facts that an indictable offence has been committed. The difficulty with that is that you cannot know the facts until you investigate. If the restraints imposed upon the IBAC were imposed upon the NSW ICAC we could never have commenced the investigation which led to the discovery of two multimillion dollar frauds involving coal tenements.

In 2012 the South Australian government created its own Independent Commission Against Corruption. The difficulty that arises there is that the South Australian ICAC was given none of the special powers which are necessary to investigate corruption effectively. The South Australian ICAC is also subject to very strict secrecy provisions—and I must say I have always thought the idea of an anti-corruption agency being required to operate in secrecy is oxymoronic. It leads to unsatisfying results, like the recent instance where, due to its secrecy requirements, the South Australian ICAC issued a simple public statement that a former politician had been cleared of corruption allegations. The difficulty was that the statement did not provide the detail of the allegations, much less did it allow any public evaluation of the evidence or the processes. I would have thought that such an approach would stir up more disquiet than it would quell.

Moving backwards, not forwards

So it is that at a time when the rest of the western world is cracking down on corruption, Australia is moving backwards and not forwards. Well, I wish to see that trend reversed. I wish to use the platform you have given me to make a call—I call upon our government in Canberra to create a strong and independent federal anti-corruption commission.

I concede that such a call made by a person such as me is weak, but I am not alone. Others who have made a similar call include some of the most respected judges, politicians, law reformers and crime fighters in our country. The Accountability Round Table is a Victorian body, highly respected, and dedicated to improving standards of accountability, probity and transparency in government. It has called upon the federal government to commit to the establishment of a comprehensive independent integrity system for the whole of the Commonwealth, incorporating a general purpose federal anti-corruption agency.

The executive of the Accountability Round Table includes the former Victorian justice of appeal, Stephen Charles QC; two former Victorian supreme court judges, David Harper AM QC and Tim Smith QC; and former federal court judge Alan Goldberg AO QC. Others who have called for a federal ICAC include three former justices of appeal from New South Wales, each of whom has presided as an ICAC commissioner—Jerrold Cripps, David Ipp and Tony Whealy. I asked the former president of the Queensland court of appeal, Tony Fitzgerald, if I may use his name in support of a call for a federal ICAC—his reply was a simple 'indeed'.

Read more: The struggle to define corruption throughout history

Where do we stand federally? In 2013 the Greens, with the support of Senator Nick Xenophon, introduced the National Integrity Commission Bill. The bill was lost when the ALP and the Coalition voted against it. The debates demonstrated a typical mix of contributions from thoughtful consideration to party-political blockheadedness.

In an attempt to get up to date for this speech I made contact with the major parties. The Greens still stand strongly in favour of a federal anti-corruption commission. The Labor position is fluid. Although Labor opposed the Greens' bill in 2013, the mood has changed and the ALP says it is is open to considering a federal ICAC body as one aspect of a federal anti-corruption policy. I do not know where the Coalition stands. I contacted my local member, Mr Hockey, but I received no response. Nevertheless, my optimism grows: I feel the prospects of a federal ICAC in the foreseeable future are rising.

It is only my personal opinion, but I think it would be quite mad not to introduce a specific federal anti-corruption commission. One of the principal arguments put by certain Coalition senators in arguing against the Greens' bill when it was presented in 2013 was that the problem—that is, corruption in the federal sector—does not exist. That claim, if true, makes Canberra the only corruption-free place in Australia and—wait for it—the only corruption-free place in the world. But even if that claim was true, it would be wonderful to discover in five years' time that a federal commission was not necessary. The kind of confidence that such a finding would engender would mean the money spent on a commission was not wasted.

I will, however, make one serious suggestion: if you are going to set up a federal anti-corruption commission, but you wish the commission to conduct its investigations and inquiries in secret, then don't bother.

I do not want to ramp up the already overblown rhetoric by calling for a 'war on corruption'. I am simply asking that we do something about it. In the end I regard the matter as relatively simple: if we can afford to have a federal windfarm commissioner, then surely we could also look at getting a federal anti-corruption commissioner.

Wake up Australia. Ask yourself: where do we want to stand on corruption? Surely we agree to stand against it. If so, then why are we doing so little? Is this because we are apathetic? Is it because we have succumbed to the problem? It is said 'Australia is open for business'. Are we willing to accept corruption as just part of the price of doing business in Australia?

Geoffrey Watson SC was senior counsel assisting the NSW Independent Commission Against Corruption. This is an edited extract of his speech for the Cranlana Programme 2015 Alumni Speaker Series.

Corruption - the invisible worm Listen to Big Ideas to hear former ICAC counsel Geoffrey Watson call upon the government to create a federal anti-corruption commission.

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