Watchdogs put down

Keeping government accountable is the problem of our time. The people do not trust politicians or parliament; police have too often been caught out lying and stealing; judges have lost their mystique. If the institutions of a modern representative democracy can’t be trusted, what then? We create statutory watchdogs.

But in February, two of them were taken to the pound.

The NSW Police Integrity Commission (PIC) failed, after its three-year, $8 million ‘Operation Malta’ inquiry, to find any bottoms to boot or recommendations to make. This, despite 51 witnesses giving evidence about certain officers who were opposed to the reform of the state’s police force. The Police Minister announced a ‘review’ while denying this would see the PIC put down.

In Western Australia the Police Minister, Attorney-General and Premier jointly released the interim recommendation of the Royal Commission into Police Corruption and announced the abolition of WA’s Anti-Corruption Commission. Their announcement followed remarkably frank revelations from a ‘rollover’ detective, known as ‘L5’, who named some 40 corrupt officers at the Commission. The Commission was the West’s third official inquiry into police-related misconduct since the 1970s. None of them found anything. The government will set up a new Corruption and Crime Commission, virtually a standing royal commission, by the end of August, when the Royal Commission ends.

The WA Anti-Corruption Commission (ACC) was doomed from its birth in 1996. It never had the powers it needed—and repeatedly asked for—to be effective. It couldn’t hold public hearings, grant indemnities to witnesses, make findings or initiate prosecutions—it could only ‘refer’ to other authorities. It couldn’t even bark. Its stringent ‘confidentiality’ provisions were thought by its chairman, Terry O’Connor qc, to prevent the ACC from making any public comment on its work, despite a ‘public education’ duty in its governing Act. So when the ACC was hounded not only by WA’s powerful Police Union (which accuses ACC investigators of zealotry, bias and incompetence), but also by local media—especially the monopoly daily tabloid, the West Australian, and a local commercial radio station whose morning talkback host is a former editor of the West Australian—it couldn’t fight back. As well, most MPs, ministers, shadow ministers and members of the Parliamentary Joint Standing Committee (the ‘watchdog on the watchdog’) thought the ACC was not only unaccountable but arrogant and ineffective.

Little wonder: the ACC never had the operational information it needed because of ‘confidentiality’.

Yet virtually all of the Royal Commission’s witnesses made their admissions first to the ACC, then to the Commission. The ACC conducted all the Royal Commission’s telephone surveillance and joint investigations. It simply could not say so. When I was appointed a part-time member of the ACC on 11 December 2002, this muzzled guardian of the public interest had no website, no searchable database of allegations and no researched overview of the nature and extent of corruption in the public sector of the West.

The criticisms levelled at the ACC have been made against every anti-corruption body in Australia: that they are unaccountable, over-opinionated, over-zealous and inefficient.

Queensland’s three-year-old Crime and Misconduct Commission (CMC) is under review by a parliamentary committee and accused of tardiness in investigating complaints, including one against Queensland’s Chief Magistrate. It has less capacity to carry out its own investigations than its predecessor, the Criminal Justice Commission. Seven years ago, Queensland’s then Minister for Police ticked off the CMC’s predecessor for criticising inadequate safeguards over new police powers of arrest, saying that a non-elected body had no right to demand its views be implemented. It has not taken long for NSW’s Police Integrity Commission, the establishment of which was recommended by the NSW Woods Royal Commission into police corruption, to come a cropper either.

The fact is that watchdogs, no matter how well-intentioned, clever or righteous, fail to protect the public interest very well for very long. New South Wales had plenty of watchdogs: a Professional Integrity Branch of the Police, an Inspector-General accountable to an independent Police Board (a position abolished in 1993 as ‘unnecessary’), an Ombudsman, a DPP, a Crime Commission, and even a relatively youthful Independent Commission Against Corruption that had more powers than Commissioner Woods, but failed to use them. It took an outsider—Woods—with curiosity, a limited focus, ample resources and tenacity to track corruption down.

Standing bodies do not typically have curiosity, limited focus, tenacity or ample resources.

Governments tend to set up watchdogs when they need to be seen to be doing something. Living with them is another matter. Western Australia’s Royal Commission looks like it will get the proof of what many WA defence lawyers already believe: that there are at least pockets of so-called ‘noble cause’ corruption, which morph swiftly from verbals and bullying to perjury, extortion, torture and crime.

Oppositions usually like anti-corruption watchdogs because they embarrass governments. In Western Australia, the ACC’s demise should embarrass the Opposition as well: when in government they too failed to provide the powers necessary for the ACC to function.

Watchdogs such as Victoria’s Auditor-General Ches Bharagwanath (almost deified by Jeffrey Kennett while he was in Opposition and the Cain/Kirner government was under attack) are far less acceptable when Opposition becomes government. Typically, they are subjected to inquiries whose outcomes are known, and their ‘message’ about the proprieties of government conduct is trivialised or denied.

Governments that create these bodies anew usually hamper their capacity to deliver the goods. Sometimes this is achieved by deliberately limiting their functions. WA’s first Official Corruption Commissioner was retired Justice Wickham who, in 1988, was expected to receive and refer allegations of corruption without the benefit of any staff. He became, in effect, a privileged letter box, forwarding to others for investigation credible citizen-initiated claims of corruption.

Sometimes the hampering is done by starving the bodies of resources. New South Wales ICAC Commissioner Irene Moss referred in a 2001 speech to the ‘80 per cent rule’: typically, anti-corruption bodies get about 80 per cent of what they need and so are forced to refer most corruption allegations back to the agencies in question for them to investigate internally. Western Australia’s new anti-corruption body will have a huge new mandate, including the investigation of organised crime and local government inquiries. It will also have powers, including the ability to hold public hearings, and responsibilities such as providing witness protection. Its proposed budget, however, of less than $20 million (not even twice the ACC’s present budget) will not enable it to carry out all those functions.

The new WA Corruption and Crime Commission will vest all of its powers and discretions in a single commissioner. The Royal Commission recommends that the new commissioner should be a judge, which raises concerns about a potential breach of the separation of powers—the appointment is to be made by the Executive. (The ACC members, uniquely in Australia, are appointed by an independent committee comprised of the Chief Justice, the Chief Judge of the District Court and the Solicitor-General.)

A standing royal commission is a contradiction in terms. A royal commission is an executive inquiry with vast, focused, temporary powers. A standing body, a permanent watchdog, quickly develops its own cultural norms and powers. The new body is to be accountable to a ‘Parliamentary Inspector’—but how can that work, in the closed circle of WA politics?

The elimination of corruption, as distinct from the elimination of organised crime, is not achieved in a culture of fear but rather in one of legitimate expectation. When the ethical principles underpinning the law are understood, approved and willingly implemented, then corruption can be expunged. But it won’t happen when good people can’t bear to work in their watchdog offices because they feel compromised, or when honest cops make cautious decisions and take defensive positions because they (unreasonably) fear other, probably equally honest, officers.

Creating an ethical culture is a long-term project. Anti-corruption watchdogs don’t live long enough to become wise or remain enthusiastic, original and effective—and fair. The idea of a ‘standing royal commission’ is a contradiction in terms, giving enormous executive power to one person in a particularly closed legal culture—remember, WA’s closest capital city is Jakarta.

Perhaps we might consider a different ‘integrity’ model that does not institutionalise power at all.

erhaps every few years, those who control the state’s coercive powers and financial institutions should be scrutinised by an outsider, an independent auditor or investigator. The true value of a Costigan, a Fitzgerald, a Woods and WA’s almost silent Justice Kennedy is their lonely integrity.

Only an outsider would notice that to which others have become unresponsive or over-familiar. She or he could observe, receive confidences, force public disclosures, make recommendations and then move on, leaving integrity and management strategies that would probably work—at least for a while.
The major obstacle to this modest proposal is the limited number of ‘commissioners’ who would be willing to live with the personal odium that follows their work, and the swift resurgence of the old ways. As Byron wrote, ‘Tis sweet to hear the watchdog’s honest bark.’ But not all night. 

Moira Rayner, author of Rooting Democracy—Growing the Society We Want, was appointed a part-time Commissioner of the Western Australian Anti-Corruption Commission on 11 December 2002, for one year.

 

 

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