Jack Waterford | Here’s to the Mark Dreyfus-Peter Dutton ICAC model blowing up in the Attorney-General’s face

Attorney-General Mark Dreyfus and Opposition Leader Peter Dutton. Picture by Keegan Carroll, Sitthixay Ditthavong

To the Attorney-General, Mark Dreyfus, it might seem such an act of hypocrisy, breath-taking cynicism, bastardry and betrayal that it almost ought to be disallowed as a parliamentary or political tactic. To an opposition finally settling down to its role, it might seem but a simple application of Rope-a-Dope.

We are, imagine, a year ahead in Australian parliamentary politics.

The new National anti-Corruption Commission has already had three inquiries, all private, whose published reports have excoriated half-a-dozen former Morrison government ministers, including Morrison himself. All but one of these have been forced out of politics, never again to be trusted with the reins of power. The reports have been model investigations. Each has focused on different aspects of maladministration and malfeasance by the ministers, ministerial advisers and senior public servants in the Morrison government. One has involved arbitrary payments to mates, cronies and party donors during the pandemic, the worse for secretive and misleading documentation and clear breach of government financial accountability legislation. Another involves systematic and conscious corruption of appointments to quasi-judicial posts. The third has involved the systematic rorting, for purely political purposes, of various grants programs, used particularly by the National Party as unaccountable war chests to reward their friends and punish their enemies.

Dreyfus is content. He can imagine further NACC inquiries into opposition misbehaviour stretching all the way to 2028. Individually and severally reminding the public of how thoroughly the Morrison administration was unfit to govern. How it continually served private interests rather than the public interest. Of how ministers and public servants consciously violated the law, including the FOI Act, so as to prevent any public understanding of what was going on, or legal, social or economic responsibility for bad outcomes. How they had suborned independent agencies of government, including the police, to be beyond any external control other than triennial elections. How some ministers lined their own pockets, and how others, after losing their seats, rushed straight to jobs offered by just the people with whom they had been dealing as ministers, acting for them as lobbyists or people with insider knowledge.

But suddenly his NACC develops a mind of its own. It closes the books on the Morrison government and decides to focus on current cases of corruption. What’s more, the opposition, which had strongly resisted a commission, and open hearings, suddenly develops enthusiasm for such investigations. Indeed it demands the very thing it had made the price of its acquiescence: open hearings with all the dirty laundry put out to dry.

Parties safe from corruption investigations

If something like this does happen, do not be too surprised. NACC would simply be following the pattern of anti-corruption machinery set up earlier in the states and territories. NACC would be showing it is not a political instrument of the government of the day, but an actually independent body setting its own agenda on the prevention and punishment of corruption. It would judge it had made its point about entrenched misbehaviour by the Morrison government. Now to show that it was even-handed.

Most voters have seen just the same events played out regularly in anti-corruption inquiries at state and territory government level over the past 30 years. These had shown that there were rich pickings in any administration, but more headlines from current cases. No party was beyond criticism. There were always politicians with a larcenous eye. There were others with no sense of the proprieties about the use of public money, or legal power, for private gain.

Party organisations had become enmeshed with vested interests, particularly in industries based on media, gambling, alcohol, tax avoidance and organised crime. A revolving door saw party officials and former politicians move freely between party and party paymasters, helping to corrupt and manipulate party decision-making processes to serve the dubious interests of their patrons. These organisations often had power over party pre-selections and could stand-over members of parliament, even ministers. Not surprisingly, mainstream parties agree to rule out NACC jurisdiction over any of this sort of political corruption or misbehaviour.

What voters had learnt from inquiries into state or territory-level corruption was that many incoming governments came into office with public virtue in their minds. They had seen governments which had been responsible for outrageous rorts, and the plain abuse of power in relation to matters such as licenses, land use, the arrangement of contracts, nepotism and favouritism, the abuses of privatisation, contracting out and private-public partnerships. They wanted matters cleaned up and abuses stopped.

But after a while, parties became complacent in power, increasingly inclined, as one critic put it, to think that they held power on freehold rather than leasehold. More venal ministers and mates would begin processes of cutting up the public pie for private purposes. Sometimes these purposes would be disguised as virtue, such as the pursuit of ideological convictions about smaller government, or the superiority of private sector methods for achieving outcomes. That was when they were susceptible to corruption inquiries. It was at that point, not after the commission had investigated every possible past case, that the eye should turn to the present – the way the “cleanskins” were now behaving.

A good general rule is that political parties should be thrown out after two or three terms, before they have become too compromised or corrupted by incumbency, and before the public administration has become so used to and comfortable with the incumbents that it has all become a cosy club, with many of the formal checks and balances gone into abeyance. One can be sure that the NACC will soon tire of examining ancient history.

It will do that long before it has run out of cases it could investigate. Long before the current government wants. The NACC will want to show that it is relevant. That, while being a scourge of corruption, it is not a partisan animal, focused only on exhuming bodies buried by the other side of politics. Indeed, being seen to be even-handed in carrying out its functions will be critical to public acceptance of its activities, as well as continuity when, perhaps much later, there is a change of government.

Changing direction

NACC will soon move on to the misdeeds of the Albanese government. That’s a good reason to handicap it now.

If experience in the states is any guide, that change in direction towards the activities of the government in office will come long before that government is ready for it. For Dreyfus, it will be seen as a kind of betrayal, given the size and wickedness of known past rorts by the previous government, and the, to him, minor peccadillos of the new one. He will be shown as having misjudged Dutton and the commission and having been altogether too smart for his own boots.

Over the past month, Dreyfus and Albanese made a pragmatic political decision to freeze the teals and other independents out of the making of the NACC legislation. Instead, they made secret, and so far unaccountable, deals with the Coalition – a party which had been resolutely opposed to any workable integrity commission right up to the election. The deals resulted in much weaker legislation. The worst part of the grubby deal – but by no means the only one – was to effectively rule out public hearings, except in “exceptional circumstances.”

Dreyfus appears to have deliberately put in place a weaker commission than he and Albanese promised at the election. This dirty deal serves Labor’s long-term interests. An ongoing activist commission might prove over-powerful, out of control. It could cause deep political problems for a Labor administration. Luckily he could exploit Dutton’s reluctance to have an over-mighty standing royal commission. Thank heavens Dreyfus is cleverer and smarter than Peter Dutton.

Both Albanese and Dreyfus may be personally pure of spirit, but they know perfectly well that many of their colleagues are not. Some of the rorting spirit will be disguised by ideological words, about sharing power, and about getting the right people in place. In some cases, departments will connive at rorting because they are captured by the interests they are supposed to regulate. One can make corruption more difficult, easier to catch. But the ingenuity of systemic rorters, whether in the ministry or the administration, can never be underestimated.

Expect sudden enthusiasm from the Coalition when Labor conduct is on question.

Where to from here?

Imagine the day when an NACC investigation reaches the point where it becomes known, perhaps from a leak, that a Labor minister and her office are under investigation. Maybe selling access to the minister for clients with interests to press with the minister.

Look to an opposition spokesman, perhaps Peter Dutton himself, proclaiming that this is a potential scandal so awful that it would immediately justify the phrase “exceptional circumstances”. That the hearings should be in public as an obviously exceptional case. Indeed that henceforth all hearings should be public as a form of deterrence.

The spokesman might be a politician who has previously spoken virtuously about kangaroo courts, and of the risks that a person’s reputation might be damaged before the commission had had the opportunity to clear her of the allegations made. One would quickly discover that the Coalition’s tender regard for reputation does not extend to Labor ministers. That the firm politics of principle were but tactics operating only while it suited. That Dutton is a more wily and slippery character than Dreyfus had judged.

With ultimate chutzpa, Dutton might go to the election promising a more open, accountable and powerful NACC. This might immediately find him some allies, including teals and others deliberately shut out of the NACC legislation debate, who plan to continue arguing for amendments. Remember that a good many teals regularly vote with the Liberals to demonstrate that they are a protest Liberal Party, not a shadow Labor Party.

Dutton might well reason that the only party which could now be hurt by public hearings would be Labor in government. He, or his successors, could deal much later with any problems facing an incoming Coalition administration six or nine years hence. In the meantime, the Liberals could look bold on public accountability, with Labor the party resisting.

Dreyfus, or Albanese, might argue that the electorate should simply not believe a Dutton turnaround on such a matter.

If they think this, they would be wise to look again at the example of the states. Labor, under Anna Bligh lost office with only a handful of members returned, sunk by scandal and maladministration. It was back in office after only a term out of power. Serious and systemic scandals in Labor in NSW, resulting in heavy electoral defeats followed by a return to favour. Likewise with governments, Labor or Coalition, in West Australia, South Australia, and Victoria. It is not as if the public forgets. Or that it fails to remember the hypocrisy of some newly converted member who was previously up to his neck in skulduggery. It is that the sun sometimes bleaches bad politicians, particularly once the performance of their rivals is on view.

A time will come when Mark Dreyfus modestly accepts the label of being father of the anti-corruption commission. He will make much of the breadth of his public consultations, while putting a heavy veil over the fact that he seemingly ignored the advice of experts and supporters of the legislation. He will attempt to embellish the impressions with further integrity legislation, such as whistle-blower legislation, which I expect will be completely useless, and drastic reform of the structure of the Administrative Appeals Tribunal. He might, though I doubt it, even make some changes to national security laws, especially those focused on secret and unaccountable trials.

NACC is not Labor’s child and Labor will not be good step-parents. The true parents are outsiders, independents and the teals, all frozen out of the delivery rooms.

The NACC was not a Labor idea. Not Dreyfus’s or Albanese’s. Dreyfus, when Attorney-General 10 years ago had no appetite for such a law and insisted that there was no case for one. Albanese, a confirmed pessimist steeped in the scandals (at state and Commonwealth level) of NSW Labor, and in any event given to considering politics in transactional terms, could see how the long-term dangers could swamp any short-term gain. The impetus arose from critics of the complacency of the public administration, and of the alacrity with which public service leaders, under both administrations, embraced bad ideas and suffocated concepts of public interest.

It developed momentum from independents. Helen Haines was developing workable (and stronger models) before Labor, on purely opportunistic grounds, adopted the cause. (As did Scott Morrison). Teal candidates worked a good deal harder than Dreyfus to make cleaning up bad government a central part of the 2022 election. Albanese and Dreyfus came into office effusive about a partnership with the teals and their contribution to the defeat of the Morrison government. Then suddenly, Albanese changed his mind. He slashed the staff entitlement of independents, though not of government or the opposition in a move calculated at drawing their ire. Dreyfus may have listened politely to teals and the independents on the shape of the legislation, but ignored them, preferring to freeze them out in favour of a deal with Dutton. The crossbench are the real parents, but the offspring has been injured by the delivery.

He is coy about the negotiations with Dutton, and one can predict that he will resist FOI disclosure, a field in which Albanese and Labor are developing a reputation as bad as the Morrison regime. The coyness ought to be pure shame. No doubt he will claim that he had to get the opposition on board because otherwise an incoming Coalition government, years hence, might abolish the NACC. It wouldn’t, it couldn’t if the NACC was up and running and proving effective, something he has in fact made less likely.

Another excuse might be that he wanted the NACC to be practical, rather than built on the over-pure, over-idealistic visions of people who would never have to deal with the sometimes quick and dirty choices required by modern government. Setting his sights low. Like pretending to be a human rights champion while ignoring the continuing plight of boat people, the over-incarceration of Aboriginal children and adults while overselling the Voice as a panacea for Indigenous people. And treating the untested ideas of right-wing security bureaucrats with more respect than traditional concepts of justice and the rule of law. All spin and no substance.

Jack Waterford is a former editor of The Canberra Times.

Jack Waterford is a former editor of The Canberra Times.

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