Tag Archives: corruption

IBAC vs ICAC: what are these anti-corruption commissions and how do they compare?

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James Ross/AAP

Yee-Fui Ng, Monash UniversityToday Victoria’s anti-corruption commission begins public hearings into allegations of branch stacking by Labor MPs and their staff.

This follows news Victorian Premier Daniel Andrews is being questioned by the Victorian Independent Broad‑based Anti‑corruption Commission (IBAC) over his dealings with the firefighters union (Andrews says he has behaved “appropriately”).

It also comes as New South Wales Premier Gladys Berejiklian sensationally fell on her sword last month. She resigned after revelations the NSW Independent Commission Against Corruption (ICAC) was investigating whether there was a conflict between her public duties and private interests, which she denies.

This has all further heated up the debate about the proposed federal integrity commission. The Morrison government is expected to introduce legislation establishing the Commonwealth commission by the end of the year. But its proposed model has been criticised as being too weak.

So, what are these anti-corruption commissions? And what are differences between ICAC in NSW and IBAC in Victoria?

What are anti-corruption commissions?

Anti-corruption commissions investigate corruption in government. They can be given strong coercive powers to do so, including the power to compel documents and witnesses.

Former NSW premier Gladys Berejiklian
Former NSW Premier Gladys Berejiklian quit her role last month, in the face of an ICAC investigation.
Bianca De Marchi/AAP

ICAC was established in NSW in 1988 by then premier Nick Greiner. A few years later, Greiner became the first premier to resign due to an ICAC investigation. Victoria’s IBAC was set up in 2012 following an election commitment by the Baillieu Coalition government (who made the pledge during opposition).

There are three main differences between IBAC and ICAC – jurisdiction, power and procedures.

IBAC vs ICAC

When IBAC was set up, it was criticised by prominent former judges at the Accountability Roundtable as a “toothless tiger,” given the high threshold of what it could investigate – it must be “serious corrupt conduct” before an investigation can start.

We should note here, the investigation threshold for the proposed Commonwealth Integrity Commission is even higher, requiring a reasonable suspicion of corruption amounting to a criminal offence before an inquiry can even begin. This is a difficult hurdle to clear.



Read more:
A federal ICAC must end the confusion between integrity questions and corruption

The Andrews government increased the jurisdiction of IBAC in 2016, removing the requirement for corrupt conduct to be “serious”, and adding the ability to investigate misconduct in public office.

But IBAC’s jurisdiction remains more limited than ICAC’s, which has broad powers to investigate any allegation upon suspicion of corruption. This includes alleged substantial breaches of the ministerial and MP codes of conduct.

IBAC’s powers are also more limited than ICAC. It is unable to use coercive powers to conduct preliminary investigations to determine whether matters warrant full examination. By contrast, ICAC has the full use of coercive powers, including for preliminary investigations.



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As a NSW premier falls and SA guts its anti-corruption commission, what are the lessons for integrity bodies in Australia?

Finally, ICAC holds public hearings as a matter of course. But IBAC can only hold public hearings in exceptional circumstances and when it is in the public interest to do so.

In short, ICAC is a more powerful commission than IBAC.

Who watches the watchdogs?

A big question is about how we ensure anti-corruption commissions do not overstep their bounds. Given their broad coercive powers, how do we hold them to account?

In Australia, anti-corruption commissions are subject to a strong system of accountability through parliaments and the courts.

Victorian Premier Daniel Andrews.
Daniel Andrews says he will not stand down over news IBAC is looking at his dealings with the firefighters union.
James Ross/AAP

IBAC and ICAC report to dedicated parliamentary committees who scrutinise their actions and decisions. Complaints against IBAC and ICAC can be made to a dedicated inspectorate – an independent statutory officer who oversees their actions.

Where the anti-corruption commissions go beyond the legal boundaries of their roles, the courts will police it. For example, in 2015, the High Court shut down an investigation against crown prosecutor, Margaret Cunneen. The court found ICAC had no power to investigate allegations Cunneen had advised her son’s girlfriend to fake chest pains to avoid a breath test after a car crash. This is because Cunneen’s actions occurred when acting as a private citizen (not as crown prosecutor) – and so did not fit the definition of “corrupt conduct” in the NSW legislation.

So the idea that anti-corruption commissions are not accountable is simply untrue.

Under attack

Anti-corruption commissions like IBAC and ICAC tend to be unpopular within governments because they scrutinise government action and may expose improper conduct or corruption within their ranks.

It is regrettably common for governments hostile to anti-corruption commissions to attack them, including by reducing their powers or funding.



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ICAC is not a curse, and probity in government matters. The Australian media would do well to remember that

In this vein, the latest barrage of criticisms by politicians of ICAC following Berejiklian’s resignation is rather predictable. It is part of a broader pattern of attacks on oversight bodies that police government action.

This is despite their integral role in our democracy. Alongside other oversight bodies such as the ombudsman and auditor-general, anti-corruption commissions form part of an intricate, interlocking integrity framework that monitors executive action.

In this light, the design of the proposed Commonwealth Integrity Commission is fundamental. Australians deserve a robust system of accountability that will keep our politicians honest.The Conversation

Yee-Fui Ng, Associate Professor, Faculty of Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

ICAC is not a curse, and probity in government matters. The Australian media would do well to remember that

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AAP/Bianca de Marchi

Denis Muller, The University of MelbourneJournalists are adept at creating and reflecting public sentiment. It is a reciprocating process: journalistic portrayal creates the sentiment, then the sentiment feeds back into journalistic portrayal.

This phenomenon can be seen clearly in the way the resignation of New South Wales Premier Gladys Berejiklian has been reported and commented on.

The problem is that public sentiment does not always remain tethered to the underlying facts, so journalism that continues to reflect that sentiment likewise tends to become unmoored.

The sentiment about Berejiklian is based on a narrative about a good woman and excellent state premier led astray by a rogue boyfriend who abused his relationship with her to advance his interests in ways that led to his being investigated for corruption. In the process, he dragged her down with him.

In essence, it is a tale we are familiar with, may even have experienced at close hand: a good person making decisions of the heart until confronted by an ugly reality. Beats there a heart so cold that cannot sympathise with this predicament?

Much of the coverage of Berejiklian’s resignation has drawn on and fed into this narrative.

It had worked for her previously when she first appeared before ICAC in October 2020, so she no doubt thought it would work again. To a large extent, she has been proved right.



Read more:
Berejiklian’s downfall derailed a career built on accountability and control. Now, who will replace her?

In this telling, the NSW Independent Commission Against Corruption deliberately brought down this paragon at the height of her powers to the detriment of the public welfare, disrupting the government at a crucial moment in the pandemic.

In this telling, too, ICAC becomes the wrongdoer. Instead of stalling its investigation until heaven knows when – the pandemic is over, the federal election is done – it irresponsibly pushes on regardless.

The surprising thing is that this line of chat has been accepted uncritically by so many elements of the media.

Their understanding is not improved by coverage like this.

The facts are that ICAC is investigating the suspected corrupt allocation of about $35.5 million in taxpayers’ money: $30 million to the Riverina conservatorium of music at Wagga Wagga and $5.5 million to the local clay-shooting club.

ICAC is investigating whether Berejiklian, while NSW treasurer, allowed or encouraged corrupt conduct by her ex-boyfriend, the disgraced former Liberal MP for Wagga Wagga, Daryl Maguire, in respect of those allocations.

ICAC says it is investigating whether, between 2012 and 2018, Berejiklian engaged in conduct that “constituted or involved a breach of public trust” by exercising public functions relating to her public role and her private personal relationship with Maguire.

It says it will begin a four-week inquiry into these questions on October 18.

It should not be presumed that ICAC will make adverse findings against Berejiklian. In similar circumstances in 1983, Neville Wran stood aside as premier during a royal commission into corruption in rugby league. He was exonerated and resumed office.

So a further fact in the present case is that Berejiklian chose to resign rather than stand aside.

It is a fair bet she was unnerved by the prospect of NSW being in the hands of her National Party deputy John Barilaro for any length of time. By her resigning, the state gets a new premier from within the Liberal Party. It was a calculated choice.

ICAC is not a curse. Anyone involved in public affairs in NSW before 1988 when ICAC was established – public officials, politicians, journalists – knew that certain parts of the state administration were riven with corruption. Police, planning, prisons, even the magistracy: repeated scandals engulfed them all.

ICAC has been and remains a remarkable force for good.

A sad irony was that Nick Greiner, the Liberal premier who had the courage to establish it, became one of its early victims. In 1992 ICAC found he had misused his position to secure an independent MP’s resignation for political advantage. Greiner fell on his sword.



Read more:
History repeats: how O’Farrell and Greiner fell foul of ICAC

It is instructive to consider how many of the Morrison cabinet would survive exposure to an ICAC investigation.

Berejiklian’s alleged conflict of interest is not a trivial matter. It involves substantial sums of public money in an exercise that she has previously dismissed as “pork-barrelling”.

This disarming term, rendered harmless by repetition, is actually about the improper distribution of public money. It is a form of vote-buying, as has been shown in the procession of rorts engaged in by the federal government over sports grants, community security grants and car parks.

ICAC exists to root out these and other ways by which the democratic process is corrupted.

It is undoubtedly a personal tragedy for Berejiklian that she has found it necessary to resign, and a misfortune for the state to lose a premier who was held in high public regard.

However, sentiment that draws a misty veil over underlying issues of probity in public life does not serve the public well.



Read more:
The ‘car park rorts’ story is scandalous. But it will keep happening unless we close grant loopholes


The Conversation

Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Grattan on Friday: Morrison’s promised integrity commission can’t hide behind COVID much longer – can it?

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Michelle Grattan, University of Canberra

The government can act super-fast on integrity issues when it wants.

On Thursday a Senate estimates committee was told the government-owned Australia Post bought Cartier watches worth $3,000 each for four senior employees as rewards.

Scott Morrison said he was “appalled” – immediately the government ordered Post’s CEO Christine Holgate to stand aside (or quit entirely if she preferred) and launched an inquiry, which will report to cabinet.

But when it comes to structural reform to improve integrity, the pace has been snail’s, the slowness justified by COVID.

On any reasonable timetable parliament would be voting about now to set up a national integrity commission.

Instead, draft legislation sits in the files of Attorney-General Christian Porter. In Senate estimates this week it was confirmed he’s had it since December last year.

The government was not inclined to conduct the necessary detailed consultations during the pandemic, Porter told parliament. Morrison said he wasn’t having a single public servant diverted from COVID.

Now COVID is more or less under control, and Morrison this week indicated to the Coalition parties he intends to run full term – that is, into early 2022.

So he has all next year to get this commission legislated and ready to start, assuming he really wants to.

He’d prefer not to be going down this path. The Coalition has been cornered by the politics into committing to a commission. Even Labor, which has become a passionate advocate, didn’t see the need for a federal body until recent years.

The New South Wales’s ICAC hearings about disgraced former state Liberal MP Daryl Maguire and premier Gladys Berejiklian have reignited the debate about integrity and a federal body.

More directly, a recent report from the federal Auditor-General exposed that the Commonwealth paid $30 million for a parcel of land later valued at only $3 million, near Badgerys Creek, site for Sydney’s second airport.

The sale, now being investigated by the police, didn’t reach ministerial level.

But the other major scandal uncovered by the Audit Office this year had a minister at its core. “Sports rorts” claimed the scalp of Nationals’ Bridget McKenzie, though Morrison forced her out on a technicality and never admitted the political rorting.

Issues of accountability and transparency tend to be “nerdy” except when they break into spectacular headlines. But they’re at the heart of achieving good government.

Ministerial standards in practice vary from time to time but federally they’re lower than they used to be (for example in periods of the Fraser and Hawke governments and the first days of the Howard government). The inclination of governments is to hang onto ministers, however compromised. McKenzie was only chopped when it was politically impossible to sustain her.

The top of the public service has also become increasingly politicised, reducing the checks in the system. On the other hand, Senate estimates hearings have proved themselves invaluable forums to mine information that’s embarrassing or worse, as we saw again this week.

Though the government says it is committed to an integrity commission, it has blunted its proposed teeth, so far as they would apply to politicians, their staff and public servants.

The commission would have a law enforcement division and a public sector division – the latter (which we are concerned with here) covering federal parliamentarians, staffers and bureaucrats.

While Porter says its powers would be “greater than a royal commission” the hearings in this division would be in secret. Those who favour secrecy argue it is necessary to avoid the “kangaroo court” aspect of ICAC; others believe open hearings are in the public interest and the threat of them can be a deterrent.

Crossbenchers have been strong proponents of integrity measures.

On Monday Helen Haines, independent member for Indi, will introduce her private member’s bill for an integrity body; she describes it as “a consensus bill with strong safeguards”.

Senate independent Rex Patrick (formerly of Centre Alliance) says the pandemic is no excuse for the government failing to table its draft legislation immediately.

“They haven’t progressed it fast enough”, he says. “Their heart isn’t in it. They are trying to hide behind COVID.”

Patrick believes the commission should be able to hold open hearings at the discretion of the commissioner. But, he says, a threshold should be met before people’s names become public.

If anyone needed evidence of the Morrison’s government’s lack of enthusiasm for scrutiny bodies, they’ve only to consider the treatment of the Audit Office in this month’s budget.

The office unsuccessfully sought $6.3 million extra funding for 2020-21. Its finances are complicated – the best measure of what is happening to it is actually how much work it can do.

Its target is 48 performance audits a year. Auditor-General Grant Hehir told Senate estimates: “We are forecasting that in 2020-21 we will produce 42 audits, falling to 40 in the following year, and then, by 2022-23, down to 38”.

In what might be less-than-welcome news for the government, Hehir noted in the Office’s annual report that its program in the longer term “will need to address the delivery of the intended outcomes of the COVID-19 response, including at a macro level, and we will plan for audits of recovery programs”.

Given the Coalition’s attacks on Labor’s programs responding to the global financial crisis, it will be interesting to see how its programs fare under forensic scrutiny.

Labor’s Julian Hill, deputy chair of the parliamentary joint standing committee of public accounts and audit, accuses both that committee (which receives the Office’s draft budget estimates) and Morrison of failing to stand up for the Office.

He claims the government has cut the Office’s funds in “revenge” for it exposing sports rorts, the Badgerys Creek land deal and defence spending blowouts.

Hill proposes changes to strengthen the independence of the Auditor-General – who is already an “officer of the parliament” but sits within the Prime Minister’s department administratively and has to look to the PM to support budget pitches.

The Audit Office deserves a big shout-out this year. But it can’t fill the gap that exists because of the absence of an integrity commission.

Surely the government can only dally on that for so long, shielded by COVID.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Grattan on Friday: Gladys Berejiklian has governed well but failed an ethical test

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Michelle Grattan, University of Canberra

If any other Australian leader had given the sort of evidence Gladys Berejiklian did to the Independent Commission Against Corruption on Monday, they’d probably have been out of their position by the end of the day.

The NSW premier was protected, in the immediate term, in part because the disclosures about her five-year secret relationship with the disgraced former Liberal MP Daryl Maguire seemed so bizarrely out of character with her unsullied past and apparent conservatism in her private life.



Read more:
Gladys Berejiklian determined to tough out scandal of secret relationship with disgraced former MP

Also, she has been a highly competent premier, especially during COVID. The pandemic fireproofed her.

Her political performance this year is certainly one reason the prime minister is standing with her. As Scott Morrison has said repeatedly, NSW has set the “gold standard” during the coronavirus crisis.

But Berejiklian’s personal and political reputation should not obscure the seriousness of her actions, or rather her inactions, in relation to Maguire.

She didn’t just make a bad judgment about a sub-optimal boyfriend which can be written off as having “stuffed up” her personal life. She made a series of decisions that were inappropriate.

When in 2015 she changed the nature of her relationship with the then member for Wagga Wagga from friendship to a “close personal” one, she failed to disclose this to colleagues.



Read more:
Brand Gladys: how ICAC revelations hurt Berejiklian’s ‘school captain’ image

Her supporters say her private life was no one else’s business. If her relationship had been with the plumber down the street who was unconnected with government, that would be absolutely correct. It’s another matter when those involved are a senior minister, who then became premier, and one of her party’s MPs.

The premier could affect the fortunes of the MP; the MP could use the relationship, even if undeclared, to further his own interests by suggesting he could deliver access.

As Berejiklian has said, there is nothing wrong per se with two members of parliament having a personal relationship. But, given the position of one of them, in this case it should have been put on the record – at least to cabinet colleagues.

When Maguire fell foul of ICAC in 2018, Berejiklian should have belatedly admitted to the relationship, informing senior colleagues, so there would be no time bombs. Certainly she should immediately have broken off the connection with Maguire, rather than continue it until this year, when he was back in ICAC’s sights.

Most compromising, however, is the material captured by phone taps of Maguire’s conversations with Berejiklian.

Maguire told her of his lobbying for developers. The activities referred to might not have been illegal – Berejiklian makes the point MPs are allowed to engage in business – but for any premier they would be very uncomfortable.

Berejiklian certainly seemed uncomfortable and on two occasions said “I don’t need to know”.

She explains her apparent dismissiveness of what Maguire was saying as boredom with his big-noting. It sounded, however, more like she did not want him to give her information she preferred not to receive. She had a deaf ear to clues she should have picked up.

Imagine the reaction if Morrison had given such evidence, or been embarrassed by such tapes. People would not be looking for reasons to excuse him.

The line that everyone makes mistakes in their private life – “people have all made personal decisions I’m sure they regret, that’s human”, Morrison says – won’t wash.

Berejiklian can be forgiven for initially being taken in by Maguire. But persisting with the relationship after he was found out is surely harder, if not impossible, to justify, regardless of her explanation he was in a “very dark place”. After all, she removed him from the Liberal Party and pushed for his resignation from parliament in 2018.

To maintain that different, tougher standards are applied to women leaders may often be true, but it doesn’t fit this instance. If anything she is being given a softer run.

Morrison has said “it would be a bit of a numpty of a decision” to replace her.



Read more:
Scott Morrison pledges ‘absolute support’ for Gladys Berejiklian

Former prime minister Malcolm Turnbull praised her integrity and said: “Her leadership of this state has been tried and tested in the toughest circumstances this year, from the bush fires to now the pandemic and she has excelled.” And, he pointed out, “Let’s be frank – leaders of her calibre are not easily found.”

If the point is that the alternatives on offer – and it is not clear who would become leader if she went – wouldn’t do as good a job, that might be a valid argument on strictly utilitarian grounds (although if she survives, this scandal will make it much more difficult for her to govern effectively).

When you compare the way the NSW and Victorian governments have handled the pandemic, NSW has been way ahead (the Ruby Princess debacle notwithstanding).

Yes, she would be hard to replace. But this should not be confused with a clear-eyed view about the ethical shortcomings in her behaviour over Maguire.

In recent decades we’ve seen declining trust in political institutions. The pandemic has led people to reattach to these institutions and all Australian leaders – Morrison and the premiers – saw their ratings rise.

What we don’t yet know is whether trust in general will again plummet when the pandemic subsides.

If politicians seem to be holding their noses when there’s the whiff of impropriety or corruption in the air, they are trifling with the public’s trust in them and in the political system. They are treating the electorate with disdain.

The ICAC hearings this week have reinforced the case for a federal integrity body. But the reactions of Liberal politicians show why they want it to be relatively toothless.

It is not being suggested Berejiklian, whose leadership hangs by a thread, has personally engaged in wrongdoing; her appearance at ICAC was as a witness in an investigation into Maguire’s alleged wrongdoing.

But on what we have heard this week, she has fallen short of the standards that should be expected of a premier. Federal and state colleagues who are defending her are being tribal or expedient or both.



Read more:
The long history of political corruption in NSW — and the downfall of MPs, ministers and premiers


The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The long history of political corruption in NSW — and the downfall of MPs, ministers and premiers

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Dean Lewins/AAP

David Clune, University of Sydney

New South Wales Premier Gladys Berejiklian has become ensnared this week in the sensational ICAC hearings into alleged corruption by former MP Daryl Maguire — and suddenly finds her future very much in doubt.

In yesterday’s hearing, Maguire admitted to using his parliamentary office and resources to conduct private business dealings, including receiving thousands of dollars in cash as part of a visa scam.

Meanwhile, Berejiklian, who has denied any wrongdoing by maintaining a personal relationship with Maguire even after he was forced to resign as MP, has faced calls from the Opposition for her to resign.



Read more:
Brand Gladys: how ICAC revelations hurt Berejiklian’s ‘school captain’ image

Whether Berejiklian will be forced to step down remains to be seen. But it’s becoming clearer by the day that, at the very least, her reputation will be seriously tarnished by the explosive revelations.

Berejiklian is hardly the first NSW politician to become enmeshed in scandal.

Corruption has been ingrained in the political culture of NSW, from the days of its founding in the 19th century. This is the very reason the Independent Commission Against Corruption was formed in 1988 — and why it remains a vital watchdog over the inner workings of state government.

Maguire told ICAC he accepted ‘thousands of dollars’ as part of a cash-for-visa scheme.
ICAC

A corrupt old town

Before NSW began governing itself in 1856, the colony was run for many years by the upright, dedicated and incorruptible Colonial Secretary Edward Deas Thomson.

With a fully elected parliament and premier, however, things changed. And democratic politics attracted corruption from the beginning.

Historian John Hirst said that after 1856,

to conservatives it appeared as if the government had been debased into a giant system of corruption with needy ministers and members bound together by their joint interest in plunder.

Politics then (and now) was a honey pot: needy, greedy ministers and MPs were always looking to benefit from public works, jobs, development and government contracts, as well as through the manipulation of the criminal justice system.

NSW has also always had a sleazy subterranean network of fixers and door-openers who could influence decisions for the right price.

Sydney has traditionally been thought of as a corrupt old town. Whether this was because of its buccaneering origins in the convict era or because it was where all the action took place has long been an open question.

A few of NSW’s not-so-finer moments

The colony’s early days set the stage for a long history of political and public corruption. Among the more notable episodes:

ICAC is formed — and then brings down its founder

In response to the storm of corruption allegations in the Wran years, Liberal Premier Nick Greiner created the Independent Commission Against Corruption (ICAC). The new body had wide powers, a broad anti-corruption brief and iron-clad independence.

Ironically, Greiner was an early victim of the new body. In 1992, it found him guilty of corruption for appointing renegade Liberal MP Terry Metherell to a senior public service position to allow the government to regain his safe seat.

The finding was overturned by the courts on appeal and most today would agree that Greiner had acted corruptly in only a technical sense. (He had not benefited personally and in the pre-ICAC era, this would have been seen as an astute bit of politics.)

Greiner’s political career ended in 1992 after ICAC expressed concerns over his integrity.
DAN HIMBRECHTS/AAP

Greiner’s downfall was a vivid indication of the seismic shift that had taken place in NSW politics to try and rid the state of corruption.

The previous “nudge, nudge, wink, wink” era of political favours was gone. A problem could no longer be fixed with the right contacts and right sum of money, and turning a blind eye to improper behaviour by “mates” was no longer acceptable.

Everyone in the public sector was on notice that corrupt dealings would be investigated and punished and offenders publicly shamed.



Read more:
History repeats: how O’Farrell and Greiner fell foul of ICAC

ICAC itself comes under scrutiny

In 2012-13, ICAC investigations exposed former minister and power-broker Eddie Obeid’s extraordinary influence on the Labor governments of Morris Iemma and Kristina Keneally and the insidious tentacles of the Obeid family’s covert business empire.

Then, in 2014, Liberal Premier Barry O’Farrell resigned after falsely denying to ICAC he had received a bottle of expensive wine from an associate of Obeid’s, who was lobbying for a valuable government contract.

Barry O’Farrell resigned over his inability to remember being gifted a $3,000 bottle of wine.
DAN HIMBRECHTS/AAP

O’Farrell admitted to a massive failure of memory but was cleared of any wrongdoing by ICAC. Nonetheless, he took the honourable course and resigned.

In recent years, ICAC itself has come under scrutiny. In 2015, it was accused of overreach, particularly in its pursuit of Deputy Chief Crown Prosecutor Margaret Cunneen.

David Levine, ICAC’s inspector and a former judge, harshly criticised the commission’s investigation of Cunneen, calling it “unjust, unreasonable and oppressive”.

Levine called the inquiry into Cunneen a ‘low point’ in ICAC’s history.
JOEL CARRETT/AAP

Reforms are brought in, but are they enough?

As a result, ICAC was restructured in 2016. The existing single commissioner was replaced by a panel of three — a full-time chief commissioner and two part-time ones.

A decision to proceed to a compulsory examination or public inquiry needed majority approval of the three commissioners. More emphasis was placed on procedural fairness in inquiries.

And the highly respected Supreme Court judge Peter Hall replaced Megan Latham as chief commissioner in August 2017.



Read more:
The ‘sports rorts’ affair shows the need for a proper federal ICAC – with teeth

Levine had also proposed abolishing public inquiries, which he said had resulted in the undeserved trashing of reputations.

He recommended an exoneration protocol for those who had a finding of corrupt conduct made against them but were acquitted in court, and judicial review of ICAC decisions.

These recommendations were rejected at the time, but they may be worth reconsidering — particularly if the inquiry into Maguire’s actions unfairly jeopardises Berejiklian’s premiership.The Conversation

David Clune, Honorary Associate, Government and International Relations, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Branch stacking isn’t just about corruption — it’s a symptom of an outdated, withering party system

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Marija Taflaga, Australian National University

In recent months, two investigations by The Age and the Nine Network have revealed allegations of branch stacking in the Victorian divisions of the Labor and Liberal parties. The scandals saw ministers and powerbrokers resign and investigations launched.

But what is branch stacking? At its most basic level, it involves recruiting members to a political party who have no genuine interest in supporting the principles or participating in the activities of that party. It can involve paying new recruits membership fees, falsely reporting addresses and recruiting people who don’t know they are even joining a political party.

By increasing the number of members in a given branch, the “stacker” can manipulate party decisions about candidate pre-selection and its internal governance bodies. These organs control the rules about how the party selects candidates, resolves disputes and governs its internal affairs.

As political scientist Anika Gauja explained, one way to reduce branch stacking might be to adopt the Queensland model of electoral commission oversight. By shifting responsibility and compliance to a third party, this could reduce the incentive structure for party operatives.

But branch stacking raises two broader questions about the health of our political parties and the way our political system operates.

The Labor branch stacking allegations resulted in several Victorian MPs losing their ministerial positions.
James Ross/AAP

Our parties aren’t as healthy or representative as they could be

The first is philosophical. It relates to why branch stacking is a problem for political parties in the first place — and it’s not just that it violates the parties’ own rules.

Australian parties claim to be democratic institutions that represent popular opinion, albeit shaped by specific political values and principles. In this way, they claim to be a vital democratic link between citizens and the elected elites who govern us, rather than a narrow group of power-seeking individuals. This is key to their claims of legitimacy.

Branch stacking undermines this claim, because it shows the selection of candidates is not always based on democratic principles, merit or representation.

Are the candidates who win the right to represent parties in government a true reflection of the values of the voters? It becomes harder to argue this point if the only way representatives got into power is because they ingratiated themselves with the right power-broker.



Read more:
Explainer: what is branch stacking, and why has neither major party been able to stamp it out?

The second question goes to the health of political parties. Australian parties have very low rates of membership (less than 2% of the population). Moreover, they are not required to publish membership numbers, despite receiving public funding.

As the recent branch stacking scandals demonstrate, manipulating party membership numbers and votes is far easier in institutions that have scant members in the first place. In small branches that are poorly attended, it only takes a few new recruits to shift outcomes.

Labor is pushing Scott Morrison to sack Housing Minister Michael Sukkar over the latest branch stacking allegations.
Mick Tsikas/AAP

Better ways to bring citizens into government

While parties can take steps to try to boost membership and internal party democracy by giving members a greater say in selecting candidates, leaders and policies, it may also be time to consider system-wide institutional reforms.

With interest in joining political parties so low, placing the entire burden on parties to ensure robust democratic representation may be too much to ask.

There are multiple options that could help fix the current system. Some include increasing the overall size of parliament, creating more opportunities for people to run for office, or modifying the voting system to be more favourable to minority candidates.

Expanding the size of parliament can bring new opportunities for different types of representation, such as deliberative forums. This style of forum involves the recruitment of ordinary citizens to consider a specific problem facing society with the assistance of balanced, expert advice.

Citizens are given the opportunity to discuss and deliberate issues, potentially changing their minds. It was precisely this process that saw the historic removal of abortion laws in Ireland.



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Democracy is due for an overhaul – could lawmaking-by-jury be the answer?

Another option is to select a portion of our representatives by democratic sortition.

Sortition involves the selection of representatives by lottery, similar to jury duty. The advantage of sortition is that it is random and more likely to recruit from across the community.

Given this, careful consideration would need to be given to the exact number of members drawn by lot and how long we might expect citizens’ recruited this way to serve in parliament, given the disruption this may cause to their lives. Such a system could be combined with the methods of party-based selection that we use today.

No magic bullet, but clear alternatives

To be clear, political parties remain important institutions in our democracy and are likely to persist for some time to come. Further, none of these measures outlined above would be a magic bullet.

In fact, any of these suggested alternatives involve trade-offs, but they would all change our current structure which encourages recruitment of professionalised politicians from narrowing groups.

Ultimately, what the alternatives do offer is a chance to reconsider how we bring ordinary Australians into the political system again and to encourage a debate about what we want representation to look like in the 21st century in order to best renew our democracy.



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The Conversation

Marija Taflaga, Lecturer, School of Political Science and International Relations, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Will the Najib Razak verdict be a watershed moment for Malaysia? Not in a system built on racial superiority

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Vincent Thian/AP

James Chin, University of Tasmania

Malaysians are rejoicing the news this week that former Prime Minister Najib Razak has been found guilty on seven charges related to corruption and abuse of power, and sentenced to 12 years in prison.

Many people want to see him (and his wife) jailed for the 1MDB financial scam, in which billions of dollars went missing from a government investment fund. Whether Najib will eventually end up in jail, though, is unclear. He will next file an appeal and the process could take more than a year to play out.

But there is a bigger question not being addressed in Malaysia. Does this verdict represents a watershed moment in Malaysian politics? Will Malaysian politics, or more precisely Malay politics, fundamentally change as a result of this monumental victory against corruption?

I would argue no.

A system built on Malay supremacy and discrimination

Malay politics is founded on a simple proposition — Ketuanan Melayu, or Malay supremacy. In recent decades, it has metamorphosed into Ketuanan Melayu Islam (Malay Islamic supremacy).

At its core is the belief Malaysia is Tanah Melayu (Land of the Malays) and ethnic Malays are the true indigenous people. As such, even though at least one-third of Malaysia’s population are non-Malays, Malays must be first in every facet of Malaysian life — from politics to government to religion to culture.

This philosophy has been institutionalised since 1971 under the government’s New Economic Policy (NEP). The NEP dictates that bumiputera (the official term for indigenous Malays) are given preference in all socio-economic spheres, including entry to the civil service, quotas in university intake, mandatory shareholdings in listed companies and exclusive business licences.

You can even get a 7-15% discount for buying a new house under the “bumi discount”, in addition to the government’s bumi quota for new properties.

In the religious sphere, Islam is widely considered the official religion of Malaysia, even though it accounts for just 61% of the population. In practice, this means people of other faiths are faced with discrimination and stringent restrictions.



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For example, it is a legal offence for anyone to proselytise Muslims, but not the other way around. In fact, there is no legal mechanism for a Muslim to leave Islam. If one is born an ethnic Malay, the constitution defines that person as Muslim. As a result, many Muslims, especially the younger ones, believe Islam is superior to all other religions.

In February, the Pakatan Harapan (Alliance of Hope) government fell, just two years after wresting control of the country from the Barisan Nasional, which had ruled Malaysia since independence.

The new Perikatan Nasional (PN) government that came into power in March was unashamedly “Malay First”, with Ketuanan Melayu Islam at its core.

Malaysia’s new prime minister, Muhyiddin Yassin.
NAZRI RAPAAI / HANDOUT/ EPA

So, what’s this got to do with the Najib verdict?

The short answer is the Najib verdict will not be allowed by the PN government to be a catalyst for real reforms or a reset of the Malaysian political system.

As long as the governing system is built on the notion of racial and religious superiority and discrimination, Najib’s verdict will be seen by the Malay elite as a story of personal greed rather than a failure of the system that allowed Najib to carry out the 1MDB scam.

The Malay elite wants to keep the current system because it allows them to wield power in the name of Ketuanan Melayu Islam and reap the economic benefits.

More importantly, it allows the Malay elite to stay in power by divide-and-rule over Malaysia’s plural population. The divide-and-rule policy (or divide and conquer) was set up by the British colonial rulers to maintain their control. The policy ensured each ethnic and political group did not cooperate with other groups to challenge the British authorities.

Is it any wonder the Malay elites are still using the same methods today?

Najib Razak still has many supporters in Malaysia who believe in his innocence.
FAZRY ISMAIL/EPA

Another important point to remember is the current system ignores the basic rules of economics. By setting up a system based on racial preferences, market forces are often ignored in economic policies in the name of “Malay share”.

Thus, anyone questioning shady deals involving the government are told to shut up as the normal rules do not apply to what is often referred to as the “Malay agenda”.

Najib was able to hide the 1MDB scandal for so many years precisely because nobody dared to question him. He claimed 1MDB was a Malaysian sovereign wealth fund and everyone in government understood it to mean a way of supporting the “Malay agenda”.

Khazanah Nasional, the real sovereign wealth fund, is tasked with ensuring the Malay stake in the economy, so it is not unreasonable for people to assume 1MDB was doing the same.

Najib’s guilty verdict will not bring even an iota of change to the country’s political and economic system. What is needed in Malaysia is the abandonment of the racist Ketuanan Melayu Islam ideology.



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The Conversation

James Chin, Professor of Asian Studies, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.

With prizes, food, housing and cash, Putin rigged Russia’s most recent vote

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Russian President Vladimir Putin at a polling station to cast his ballot in a nationwide vote on constitutional reforms in Moscow on July 1, 2020.
Alexey Druzhinin/SPUTNIK/AFP via Getty Images)

Regina Smyth, Indiana University

When Russians voted in early July on 200 constitutional amendments, officials rigged the election to create the illusion that President Vladimir Putin remains a popular and powerful leader after 20 years in office.

In reality, he increasingly relies on manipulation and state repression to maintain his presidency. Most Russians know that, and the world is catching up.

At the center of the changes were new rules to allow Putin to evade term limits and serve two additional terms, extending his tenure until 2036. According to official results, Putin’s regime secured an astounding victory, winning 78% support for the constitutional reform, with 64% turnout. The Kremlin hailed the national vote as confirmation of popular trust in Putin.

The vote was purely symbolic. The law governing constitutional change does not require a popular vote. By March 2020, the national legislature, Constitutional Court and Russia’s 85 regional legislatures had voted to enact the proposed amendments.

Yet, the president insisted on a show of popular support and national unity to endorse the legal process.

The Kremlin’s goal was to make Putin’s 2024 reelection appear inevitable. Given the stakes, the outcome was never in doubt – but it did little to resolve uncertainty over Russia’s future.

Declining social support

Why hold a vote if a vote isn’t needed?

As a scholar of Russian electoral competition, I see the constitutional vote as a first step in an effort to prolong Putin’s 20-year tenure as the national leader. The Kremlin’s success defined the legal path to reelection and the strategy for securing an electoral majority in the face of popular opposition.

Protesters in line at the presidential administration in Moscow, waiting to deliver statements that they don’t accept the results of the constitutional amendment vote, July 4, 2020.
Sefa Karacan/Anadolu Agency via Getty Images

Its effect on societal attitudes is less clear. A recent poll by the independent polling organization the Levada Center showed that while 52% of respondents supported Putin’s reelection, 44% opposed. At the same time, 59% want to introduce a 70-year-old age cap for presidential candidates. This change would bar the 68-year-old president from running again.

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The government’s disorganized and weak response to COVID-19 highlighted the inefficient and corrupt system and produced an unprecedented drop in Putin’s public approval ratings.

Growing signs of popular discontent in Russia suggest this polling data underestimates demand for change. Local protest against pollution, trash incineration and state reforms continue to grow across the Federation. Focus group data reveals that ordinary Russians are concerned about state repression and civil rights violations.

In the leadup to the constitutional vote, internet influencers read the public mood and refused payments for their endorsement, fearing a backlash from followers and advertisers.

A new Putin majority

Declining popular support highlights the difficulty of building a new voting coalition. Manufacturing a demonstration of national unity was the first step in reinventing Putin’s links to core supporters in the runup to the next national election cycle.

By 2012, Putin’s first coalition, forged in the economic recovery of the early 2000s, was eroded by chronic economic stagnation punctuated by crisis.

In the mid-2010s, Putin’s new majority was based on aggressive foreign policy actions. That coalition declined, as conflicts in Ukraine and Syria dragged on, and public support for expensive foreign policy adventures decreased.

The constitutional vote marks Putin’s third attempt to reconstruct electoral support rooted in patriotism, conservative values and state paternalism that echoes the Soviet era.

Fixing the vote

The constitutional reform campaign focused on state benefits rather than the Putin presidency.

Putin offered something for everyone in the 200 amendments.

As an antidote to unpopular pension reforms, a new provision guarantees pensioners annual adjustments linked to inflation. Other amendments codified existing policies guaranteeing housing and a minimum wage. New clauses codify Putin’s version of conservative values, with measures that add a reference to God, a prohibition against same-sex marriage and support for patriotic education. Other provisions take aim at corruption, by prohibiting state officials from holding offshore accounts.

A massive PR campaign framed starkly different appeals to different voter groups. For those concerned with international security, ads depicted apocalyptic visions of Russia’s future after a NATO invasion. For younger voters, appeals depicted happy families voting to support a bright future.

State television featured supportive cultural icons and artists, including Patriarch Kirill, who is the head of the Russian Orthodox Church. Putin himself argued that participation was a patriotic duty. No one mentioned the controversial loophole that would allow Putin to run again.

The campaign foretold the outcome: The regime would stop at nothing to secure success. Officials coerced employees of government agencies and large businesses to turn out. Voters were offered prizes, food and chances to win new housing and cash for participating.

Ostensibly in response to COVID-19, the Electoral Commission altered voting procedures to evade observation, developing a flawed online voting system and creating mobile polling stations in parks, airports and outside apartment blocks. There is overwhelming evidence that the Kremlin resorted to falsification to produce the desired outcome.

Most Russians understand that the manufactured outcome does not accurately reflect attitudes about Putin’s reelection.

Limits of disinformation

There is growing evidence that the public is no longer persuaded by disinformation and political theater such as the rigged constitutional vote. Trust in state media, the president and the government are declining precipitously.

Members of a local electoral commission empty a ballot box at a polling station, July 1, 2020.
Alexander Nemenov/AFP via Getty Images

The realities of sustained economic stagnation and the Kremlin’s anemic response to COVID-19 stand in sharp contrast to its all-out approach to the symbolic national vote. It can rig a vote, but it can’t control a virus.

The Kremlin’s pandemic response raises doubts about its ability to fulfill new constitutional mandates. Widely publicized efforts to reform the Soviet-era health care system still left hospitals unprepared to manage the pandemic. The state proved incapable of delivering bonuses to first responders and medical workers. The Kremlin refused to use its substantial emergency fund to support entrepreneurs, families with children and the unemployed.

Given these realities, upcoming elections will test the illusion of a new pro-Putin majority defined by this rigged vote. And if the voters abandon Putin, the new Constitution provides a final path to remain in office: the unelected chairmanship of the powerful new State Council.The Conversation

Regina Smyth, Professor, Indiana University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What Najib Razak’s corruption trial means for Malaysia – and the region

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File 20190404 160930 1a1hfx6.jpg?ixlib=rb 1.1
Former Prime Minister Najib Razak arriving in court in Kuala Lumpur on Wednesday.
Fazry Ismail/EPA

James Chin, University of Tasmania

The corruption trial of Najib Tun Razak, the former prime minister of Malaysia, has finally begun following two postponements and an attempt on the opening day of the trial for a third. Many Malaysians were starting to wonder if Najib would ever get his day in court.

Najib’s lawyers have used every legal manoeuvre at their disposal to try to delay the trial as long as possible. These tactics verged on the ridiculous a month ago when Najib’s main lawyer claimed his pet dog had injured his wrist. The move worked – the former PM was granted another reprieve.

The trial over Najib’s role in a financial scam involving Malaysia’s 1MDB sovereign wealth fund will certainly not proceed smoothly, and the defence is sure to file new objections to higher courts to try to stop it again.

The reason Najib wants the trial delayed is simple: if he is found guilty, it will have a major impact on other upcoming trials.



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His wife is also charged with money-laundering in connection with the scandal. (She’s accused of splurging on designer clothes and handbags during million-dollar shopping trips.) If Najib is found guilty, this would undoubtedly strengthen the case against her. Several ministers who served under Najib have also been charged with corruption.

Najib himself also faces several other trials related to the 1MDB scandal. For the government, the current trial is by far the simplest and easiest to prosecute. It involves 42 million Malaysian ringgit (A$14.5 million) that made its way from SRC International, a former unit of 1MDB, to Najib’s personal account. All these transactions occurred in Malaysia, unlike the other cases, which involve international transactions and multiple jurisdictions. The paper trial for this trial is straightforward.

Najib has pleaded not guilty to all charges and claimed the money in his accounts did not come from SRC International.

If Najib is found guilty, he will automatically lose his seat in parliament and face possible jail time. Being an MP gives him the platform to influence politics and say anything he likes against the current government, led by his political rival, Mahathir bin Mohamad.

Najib is already working on his political comeback – part of the strategy is to maintain a high profile as an MP through social media.

Najib tried to bolster his image with video of him singing a Malay version of The Manhattans’ 1970s song, ‘Kiss and Say Goodbye’

How Malaysians are viewing the trial

Many Malaysians want the trial to proceed without any more interruptions, because it would show the accountability process is finally working in Malaysia. Najib and his government were ousted from power in last year’s election because voters wanted the PM (and his wife) to face trial over the corruption allegations. Previously, it was understood that if you held a high political office, you were likely to get away with corruption.

If Najib isn’t convicted, many will likely wonder if there was any point to the change in power. The new government knows this and must deliver a credible trial. There is no other political option.

If Najib and his expensive lawyers are able to continue delaying the trial, Malaysians may start to lose faith with the new administration. Mahathir has publicly pledged to jail Najib for corruption before he hands over power next year to party leader Anwar Ibrahim, and if he cannot deliver on this, it will damage his successor’s political capital.



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Najib may even try to delay his trials until after the next election, due in 2023, so he can continue to mount his political comeback.

Far more important for Malaysia, however, is the issue of political immunity. No previous leader has ever been charged with corruption and it is vitally important the rule of law is applied here for future generations.

This has regional implications, as well. Many activists in countries such as Singapore, Indonesia and Thailand see the Najib trial as a benchmark for tackling corruption in their own countries.

In many Southeast Asian countries, a culture of impunity persists at the highest levels of government. There is a belief among many political leaders that once they leave office, the sins they committed while in power will not lead to jail. It is as if this is one of the benefits of being elected to office.

In the coming days, expect more delay tactics by Najib’s defence team. The case might even be halted again due to a legal challenge on a point of law.

But given the stakes involved, I have no doubt the new Malaysian Attorney-General, Tommy Thomas, will make sure Najib’s trial goes ahead. Malaysia as a nation cannot have closure over the 1MDB affair until he is called to answer for his alleged crimes.The Conversation

James Chin, Director, Asia Institute Tasmania, University of Tasmania

This article is republished from The Conversation under a Creative Commons license. Read the original article.