Written by Anthony Whealy. The current chair of the Centre for Public Integrity he is a former NSW Supreme Court judge and a former assistant commissioner of the ICAC. This article was originally published in the Australian Financial Review on May 2, 2022.
It is a concern when a major newspaper, in this case, The Australian Financial Review, editorialises on an important subject in a misleading way.
It is particularly concerning that these opinions were published only weeks out from the federal election at a time when, if uncorrected, they are most likely to cause harm to an undecided electorate.
The topic concerned the need for political integrity at a federal level and, consistently, the need for a federal anti-corruption body capable of operating effectively to both uncover and deter corrupt conduct. It is to the paper’s credit that it endorsed both these needs.
The thrust of the editorial, however, was an attempt to draw a distinction between a mere failure of political integrity and, by contrast, genuine corruption.
The distinction was especially sought to be made in the context of so-called “pork barrelling”. Rightly, the community judgment, and that of senior academics and lawyers, is that the deliberate misuse of large amounts of public money for political gain is seriously corrupt. To label it as mere “pork barrelling” is a misleading misnomer.
This label trivialises serious wrongdoing, even where such conduct may not constitute a criminal offence. To suggest that seriously corrupt behaviour of this kind is merely a lack of political integrity, and should attract no more than a political penalty, is, with respect, dangerous to probity.
The argument is further weakened by the example given of a “minister foolishly sleeping with his adviser”. This has never been regarded as corrupt conduct even if it might currently be a breach of a ministerial code. However, the example is misleading because it fails to understand the NSW legislation and indeed Helen Haynes’ bill for a federal ICAC, which, in this regard, is modelled upon it.
Far from diverting such a body from genuine corruption, this level of accountability will go to the very heart of serious corruption
Conduct is not corrupt unless it could constitute a criminal offence, a disciplinary offence, reasonable grounds for dismissal or a substantial breach of an applicable code of conduct.
The example of an amorous minister, though generally reprehensible and undesirable, would not ordinarily be viewed as a substantial breach of the code of conduct either by the community or by a federal or state anti-corruption body.
By contrast, the misuse of taxpayer funds, if it occurred, orchestrated and directed by a minister for personal or political gain, would be rightly seen as a substantial breach, extending well beyond a mere lack of political integrity. It would be rightly adjudged to be a serious example of corrupt conduct.
The editorial states: “most people know real corruption when they see it”.
Is this suggesting that most people would regard the misuse of public funds as broadly acceptable? Surely not.
The Financial Review is perfectly entitled to express its opinion. However, to suggest, as the editorial does, that the misuse of public funds should be free from investigation by a federal ICAC, and to express this opinion only weeks out from the election, is deeply troubling. The Financial Review is our premier business daily periodical and its opinions carry significant weight in the business and broader community. There is a clear need for its opinions to be fair, balanced and accurate.
The editorial concludes by arguing that “campaigners for a federal corruption body want any breach of ministerial codes of conduct … to be effectively tried by ICAC”.
This is far from accurate. Those who advocate for a strong anti-corruption body at a federal level, including the vast majority of the Australian public, want only serious or substantial breaches of ministerial codes of conduct investigated, and only where it is in the public interest to do so.
They want those ministers who breach codes of conduct in a serious and substantial manner, whatever their political persuasion, to be held to account by a fair impartial and effective federal integrity body.
To the contrary of the Financial Review’s viewpoint, far from diverting such a body from genuine corruption, this level of accountability will go to the very heart of serious corruption, as it should.