Watchdog's tale

Australian - 12th March, 2009
Author: Imre Salusinszky

Twenty years after the ICAC was set up, not every state has followed NSW's example, writes Imre Salusinszky

ICAC chief Jerrold Cripps, second from left, with former commissioners Irene Moss, Ian Temby and Barry O'Keefe yesterday. Picture: James Croucher

AS far as corruption and graft are concerned, the late 1980s were one of the ripest periods in NSW political history.

Former corrective services minister Rex Jackson was jailed for taking bribes and former chief magistrate Murray Farquhar was doing time for attempting to pervert the course of justice.

In 1988, the election of a Coalition government under Nick Greiner brought a new broom sweeping through public administration in NSW. The result was the Independent Commission Against Corruption, Australia's first dedicated corruption watchdog.

The ICAC opened its doors for business 20years ago tomorrow, and its head, Jerrold Cripps QC, displays a mixture of pride andfrustration when asked to produce a scorecard.

"The commission was seen by the Labor Opposition as some sort of vehicle to try (to) catch the people who'd been in government before the Liberals got in," Cripps tells The Australian. "Meanwhile, civil liberties groups said that sooner or later the ICAC would start abusing its power. It all turns out not to have happened. It's a good institution."

The ICAC was closely followed by Queensland's Criminal Justice Commission (since replaced by the Crime and Misconduct Commission). The '80s were an equally willing period in Queensland and the CJC arose directly out of the Fitzgerald inquiry, which uncovered a web of public sector, police and political corruption that led to the jailing of four ministers and a police commissioner.

In 2003, Western Australia followed suit with the Corruption and Crime Commission, following a royal commission into the state's police service.

Cripps points out the ICAC has received more than 35,500 complaints and that most have gone nowhere. ("It's stuff like 'the taxman was rude to me', which has nothing to do with us.")

However, there have been 93 public inquiries during the 20-year period and more than 800 recommendations to government on how to nip official corruption in the bud.

In the 2007-08 financial year, the ICAC undertook 106 investigations, made 53 findings of corrupt conduct against 51 people, recommended criminal charges against 23 people and cost taxpayers $17.9 million to run.

Both the ICAC and the CMC can look back with some satisfaction on their greatest hits and golden memories. In Queensland, that would include the 2006 CMC investigation of former Labor minister Gordon Nuttall, who is facing 35 criminal charges of making and receiving corrupt payments.

But if there has been one ICAC investigation that has truly gripped the public imagination, it was last year's probe into Wollongong council that found former council planner Beth Morgan had been sexually involved with three developers while assessing their developments. The council was sacked and the ICAC has recommended charges against 11 people, including Morgan.

Cripps is under no illusion why the inquiry attracted such huge interest -- "it was the sex, of course" -- and his frustration bubbles to the surface when he contrasts the one-off investigation of Wollongong with some of the ICAC's hardy perennials.

"Although the conduct was reprehensible, it's one council behaving badly in one division," he says. "It's not as bad as people doing it time after time, as in RailCorp."

The state-owned rail corporation has been in front of the ICAC so often, there have been suggestions its senior management should be given parking spots at commission headquarters. Last year alone, Cripps and his team produced no fewer than eight reports on the organisation. Those reports found corrupt staff bled RailCorp of nearly $19 million in improperly awarded contracts and kickbacks to staff and their friends and families. The ICAC made a total of 97 corrupt conduct findings and recommended 663 criminal charges against 33 people.

"Once you've exposed corruption and the organisation does respond, you've eliminated that area and put other people on notice," Cripps says. "But at RailCorp no one seems to do anything about it. Unless the Government comes in and does it, the ICAC can't do it. We have a staff of 110 and can't tell people how to run a business like RailCorp."

Despite the high-profile sting operations by the established corruption watchdogs in NSW, Queensland and WA, the other states and the commonwealth have proved stubbornly resistant to setting up similar bodies. They cite the cost of maintaining what is, in effect, a standing royal commission or claim the work is being done by a patchwork of existing agencies. And this despite the fact the problems tackled by the watchdogs seem more relevant than before, amid growing public disquiet over developer donations to the main political parties and accusations of a politicised bureaucracy at state and federal levels.

Last year, federal Special Minister of State John Faulkner told The Australian the Rudd Government would examine the idea of a federal ethics commission to investigate misconduct and provide ethics training to MPs and public servants. By December, however, this had contracted to an ethics advisory service lodged within the Australian Public Service Commission. Too little, too late, according to Jeff Malpas, a professorial fellow at the University of Tasmania and leading campaigner for ethics in government. Malpas not only supports ethics commissions for the commonwealth and the southern states but also the retooling of the ICAC-style watchdogs so their education function is broadened and highlighted. He cites the leading malaise of our time -- the collapse of global financial markets -- as a powerful example of where the fight against official corruption has gone wrong.

According to Malpas, the focus by corruption authorities worldwide on discipline and criminality has sidelined issues of responsibility, including ethical conduct by public and private organisations towards citizens.

"The development of new financial instruments occurred in a framework where there was very little attention paid to the way in which those instruments operate in an ethical context," he says. "The values that operate within government and society ought to be the things we're most concerned about, yet we worry about a different level of the problem."

Although Malpas does not propose drawing the teeth of the ICAC and its interstate cousins, he believes the hold of lawyers and former judges on those organisations needs to be loosened so they are better suited to "culture building", including by establishing networks of co-operation with related agencies, such as auditors-general and ombudsmen. He says the key function of an ethics body at federal level should be to reverse the insidious undermining of the independence of the bureaucracy that began in the '80s.

"Public services are meant to be apolitical but there is no way of enforcing that commitment," Malpas says. "We have to decouple the federal and state public services from government. That means we have to focus on codes of conduct and codes of ethics. At the moment, these operate in ways that are directed at the disciplining of staff rather than to ensure accountability and responsibility."

The ICAC's founding commissioner Ian Temby QC disagrees that a federal version of the ICAC, heavy or lite, is called for.

"There tend to be lower levels of corruption as the level of government gets higher," he says. "It's essentially a state and local government problem."

Asked for his own 20th birthday scorecard on the ICAC, Temby, like Cripps, raises the running sore of the behaviour of RailCorp and contrasts it with agencies where management was prepared to take the ICAC's recommendations to heart.

"We unearthed massive systemic corruption in driver licensing and did a lot of public education work," he says. "The thing was successful because Bernard Fisk, who was then running the Roads and Traffic Authority, embraced the need for these measures and drove change within the organisation. You can do only so much from outside."

Nevertheless, the commission gets an overall tick from Temby.

"The most obvious indicator is policing," he says. "For many decades every second or third police commissioner in NSW was personally corrupt, in the sense of taking money from criminals through bagmen. We'll never see that again, partly because of the emphasis (that) the creation of the ICAC has placed upon public sector integrity."

If there is one criticism of the ICAC heard more frequently than any other, it is that the commission has gone after the minnows -- local mayors and councillors and minor bureaucrats -- rather than the big fish.

The exception, of course, is Temby's hunting down of Greiner, the ICAC's creator. In 1992, the ICAC ruled the then premier had acted corruptly by offering a public service position to former education minister and renegade Liberal MP Terry Metherell as a mechanism for prising Metherell out of parliament. Greiner was eventually cleared by the courts, but too late to save his political skin.

You would expect this searing experience to cloud Greiner's birthday wishes for the ICAC, but he is surprisingly generous.

"In the 1970s and '80s, corruption was a top-of-mind political issue in NSW," he tells The Australian from London. "It hasn't been one since, though the Labor Party (has) started to make it an issue again. The ICAC has changed the public service and the political culture in a fundamental way."

On his own fate at the ICAC's hands, Greiner says the investigation in 1992 resulted in "what I think everyone thought was a patently absurd outcome".

"The problem with the ICAC is not its powers but finding people of sufficient calibre and balance to run it. It's a huge amount of power to give a person. People either tend to develop delusions of grandeur -- which was Ian's position -- or tend to go very quiet."

During the past 17 years, Greiner has said hello to Temby once or twice, "but I don't think I've said more than that and I don't propose to".