‘Show me the man and I’ll show you the crime,’ secret police chief Lavrentiy Beria assured the equally loathsome mass-murderer Joseph Stalin.
Politicians demanding a federal version of the notorious NSW Independent Commission Against Corruption (ICAC) should ponder these words.
Have they forgotten that ICAC devoured its creator, Premier Nick Greiner, who was later cleared by the Court of Appeal? Have they forgotten ICAC had not only brought down another premier, it has damaged forever the reputation of a string of innocent victims, their lives and the lives of their families?
It was only when ICAC took on a target who would not be subdued, it finally met not its equal but its superior, that scourge of the criminal class and defender of the victim, the formidable Crown Prosecutor Margaret Cunneen. Even allowing for the most lax interpretation of their powers, this travesty, unrelated to corrupt conduct, could never have been justified. So rather than the usual auto-da-fé before the baying mob, ICAC would find itself ignominiously condemned before the highest court in the land.
This did not stop ICAC from persuading craven NSW politicians from actually widening its powers.
So why is an elite cabal of backbenchers determined to make a federal ICAC one the key policies with which they can signal their undoubted virtue to the usual adoring elites? Needless to say, not one of these, so unrelated to the cares and concerns of the rank-and-file, would pass the pub test.
They have never explained why a federal ICAC is needed when the taxpayer already spends $3 billion on ten key integrity agencies, with sixteen others playing some additional role.
According to the Transparency International World Corruption Perceptions Index, Australia remains in the top twenty, indeed the top thirteen least-corrupt nations.
It is important to note that not one of those twelve nations ahead of Australia has achieved their purity by setting up a monstrosity similar to ICAC.
(Incidentally of the 13 countries perceived to be the world’s least-corrupt, 61 per cent are constitutional monarchies, or as John Howard so eloquently puts it, crowned republics. They are over-represented by a massive factor of four, just as they are always over-represented in any international measure of excellence, including health, welfare, education, liberty and human rights.)
Meanwhile, a highly complex 260- page bill, drafted by its strongest proponents for independent MP Cathy Mc Gowan, has been introduced with a claim it will cost just under a $100m each year. As with everything in Canberra, this can be guaranteed to cost much more. This is not just the usual money down the drain, it is to create something dangerous.
The accompanying 87-page Explanatory Memorandum explains little, and in relation to the crucial definitions of ‘corrupt conduct’ and ‘corruption issue’, only explains where they can be found.
Be assured that if ever there were a lawyer’s feast, this is it. These definitions use almost as many words as are on one full page in The Spectator Australia.
Given that very few politicians will bother to read the bill, much less understand it, there is a danger it could be adopted without an appreciation that it seriously breaches the ancient constitution subsumed in our written federal and state constitutions.
As Bolingbroke so eloquently described it, this is that assembly of laws, customs and institutions by which the people have agreed to be governed. It is supplemented by what emerged in the Glorious Revolution. As Montesquieu observed, the result was that England then was the ‘one nation in the world whose constitution has political liberty for its direct purpose.’
The English achieved this unique result by adding to the ancient right to trial by jury, the concept adopted unconsciously in the Glorious Revolution and identified by Montesquieu, the separation of powers.
ICAC, a leviathan from another age and another culture, offends both grievously. As an investigator it exercises the executive power. But through a parallel court system, it also exercises the judicial power, a forbidden mixture.
Apologists will say its powers are not judicial. Tell that to the string of innocent victims and their families whose lives have been ruined by its process and rulings.
ICAC in full burst imposes a trifecta of terror beginning with the parade of shame. This is the modern version of the tumbril, the tricoteuses replaced with well-primed journalists ready to relay the images of the crest-fallen, falsely and so wrongly presumed guilty, to the nation.
Second, there is the show trial in what is clearly intended to be seen as a courtroom, but where there is no jury, no right to silence, no privilege against self-incrimination and no presumption of innocence. Cross-examination is by permission only, and exculpatory evidence, evidence favourable to the accused, can and has been hidden. Above all, the ‘court’ can make findings against the accused.
Third there are the well-placed and unlawful leaks in the media.
If there is need for enhanced investigations of corruption, let the police do this and be funded for it. The solution lies not in egregiously breaching either the Magna Carta or the principles of the Glorious Revolution. In fact our ancient common law offers a peoples’ solution.
This is the grand jury of the rank-and-file, randomly chosen citizen judges, who hear evidence in secret. They may subpoena evidence such as documents as well as persons to testify.
This does not offend the presumption against innocence as there is no parade of shame nor is the hearing in public.
If the grand jury decides there is indeed a case and delivers, as they say, a ‘true bill’, this flows smoothly and efficiently into an open trial before a judge and jury. If not, the accused is ‘no-billed’.
Apart from the consistency of this with constitutional principle, the process is vastly more efficient than ICAC. Where ICAC recommends a prosecution, the Director of Public Prosecutions must start all over again, delaying the case for years.
The point is our ancient common law offers the solution without endangering fundamental rights. The American Founding Fathers wisely entrenched this into their constitution.
Our ancestors knew better, why not learn from them?
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