The New South Wales Liberal politicians who criticise the Independent Commision Against Corruption’s leisurely finding that former premier Gladys Berejiklian engaged in serious corrupt conduct will no doubt agree, at least in private, on one matter.

This is that, in all its exquisite detail,  including the rushed legislation to validate the injustice it had imposed, ICAC’s creator and the body responsible for its many failings is none other than the parliamentary Liberal party.

In addition, they will probably raise an eyebrow when they hear the repeated claim that the premier was popular.

This comes from a mainstream media that, during Covid, had spectacularly abdicated its responsibility to make government accountable, preferring instead to be its daily messenger.

Is it harsh to suspect that it now suits them to claim that the wasteful, ineffective and improper authoritarian rule they ignored was exactly what the people wanted?

We must not forget, for example, the devious way the Berejiklian government ensured parliament’s upper house could not properly scrutinise their response to Covid. Or that the construction industry was closed down at a cost of over $1.4 billion, without the advice of the chief health officer. Or the use of the police to control the populace in a way completely alien to our ancient democracy.

The premier’s popularity can perhaps be more realistically assessed by recalling how she narrowly won the 2019 election.

The very existence of ICAC is but one example of a wider problem within the nation’s parliamentary Liberal parties. This is in abandoning the Menzies legacy, often on the superficial argument of relevance.

The point is that political parties in a democracy are, in the ultimate sense, based on ideas. One of Australia’s wisest political strategists, Rick Brown, recalled recently, on ADH TV, the observation by Keynes that the  power of vested interests is vastly exaggerated compared with the ‘gradual encroachment of ideas’.

It is the ideas in Menzies’ legacy which can still prevail against those coming in from alien communist and extreme left sources. The Liberal party has little else.

That legacy consists of three fundamental pillars. Like a three-legged stool, if one  pillar is removed, the stool collapses. The result is, as we have seen, the Liberal opposition is seen in some states, as a Labor mirror,  despised and increasingly ignored.

Those three pillars are first, common-sense conservatism, second, our inherited constitutionalism and third, the base: Menzies ‘forgotten people’. These are still neither the elites, the unionised nor today, the able welfare dependent. They are the broad middle class (and as in Menzies day, especially its women) – rendered powerless by its lack of wealth and organisation, but guided by fundamental decency, inherent conservatism  and common sense.

Our inherited constitutionalism requires  checks and balances sufficient to control the exercise of power but flexible enough to ensure stable government, a broad separation of powers, and a decent respect for private property.

It is surely elementary that being seen as delivering judgements or verdicts, the preserve of a court, the very existence of ICAC flagrantly breaches the separation of powers. That should have been obvious from the beginning.

It is lamentable that the parliamentary party ignored this with the result that too many suffered serious  injustice, as the Rule of Law Institute’s Chris Merritt explains on ADH.

The solution was always obvious. First, abolish public hearings and reports. Second, on any apparent prima facie breach of the criminal law, refer the matter immediately to the Director of Public Prosecutions, or, if that ancient institution is revived, the grand jury. This would decide, behind closed doors, whether the matter should go to trial before a judge and (petit) jury.

In addition, introduce a criminal offence of misfeasance in public office to be used where politicians do damage with powers they do not legally have. Also, ensure the making of regulations is open and transparent and subject to full parliamentary scrutiny, including by upper houses – and restore Queensland’s, removed against the electors’ express wishes.

The Menzies legacy provides the path, but not necessarily the solution, to a range of issues.

The Menzies legacy was the answer to old Labor’s centralist socialism which, if it had prevailed before federation, would have ensured federation never came to pass. It provides the answer to the flood of essentially communist-sourced or communist -supported ideas which are undermining  Australia and the West.

Those invasive ideas include the discredited theory of man-made global warming, anti-women transgenderism, the monopolistic suppression of free speech by powerful social media, both sides’ clearly unconstitutional misinformation law, and the new apartheid evidenced in the Voice referendum and supporting state legislation such as the Queensland Path to Treaties law and the WA Aboriginal Heritage Law.

Guided by the Menzies legacy, any politician campaigning as a member of the party he founded would understand what path to take. Fortunately, new parties are forming, often more in the Menzies tradition than many endorsed Liberals. In ADH interviews John Ruddick and Malcolm Roberts have explained that. Take for example the proposed misinformation law where massive fines may be imposed by Acma for so-called misinformation or disinformation. Presumably, this fine will follow a finding of misinformation and so on, by Acma.

Acma not being a court, this clearly offends the separation of powers. It also offends the implied freedom of political communication.

Having presented an amicus curiae brief to the High Court for the press council in Lange v. ABC (1997) arguing this implied freedom should remain a personal right, I remain of the view that the implied freedom exists, albeit as a restraint on the law-making power of parliaments.

There is an attractive alternative to reliance on judicial interpretation, one practised by the Swiss.

Take these issues from the courts and leave them with the people through their right to change the constitution by citizen-initiated referendums. We went half way there at Federation. Why not now go the full way and trust the people? Menzies did.