Forget ICAC and the Register of Member’s Interests, for a moment. Let us distract ourselves from questions about Gladys Berejiklian and Christian Porter. The recurrently anachronistic King Arthur sits at his round table with knights whom he has appointed for their outstanding character, noble virtues, and exceptional integrity. King Arthur himself feels that he can govern only if he maintains unimpeachable moral authority, and it is on this basis that he has been able to resist challenges from those who wish to claim the throne.
One day, a meeting of the Round Table is suddenly interrupted: a man bursts into the room and makes astounding allegations about Sir Lancelot. Should Sir Lancelot resign his position? Should King Arthur sack him?
Putting it in these terms gives us a bit of breathing space away from the overtly partisan nature of public discussion. I have rusted-on ALP friends who, to this day, still argue that Senator Sam Dastyari was unfairly treated. Dastyari had significant legal bills, and a very kind offer was made by a Chinese businessman to pay them for him. When the businessman was later being investigated by Australian intelligence agencies, Dastyari–no doubt out of kindness and goodwill–provided counter-espionage advice to the Chinese businessman. Jordan Shanks (‘FriendlyJordies’) maintains that Luke Foley, former leader of the ALP in NSW, was unfairly treated as a result of allegations that he (Foley) assaulted an ABC journalist (which Foley denies). There are persistent allegations about sexual harassment and assault within the Australian Greens. And the current Federal Government has been particularly prone to scandal–the sale of Commonwealth land, the extraordinary expenses claim for one MP’s home Internet, and the mystery of the au pairs. The predominant way the discussion is had in public is to justify the partisan position of the author. We demand the highest standards of integrity and accountability from those we want to drag down; we have more nuanced positions for people on our team.
Most people who think through the problem in purely abstract terms immediately start having similar kinds of intuition. What kind of allegation? Who is making the allegation? What is the context?
I think–I suspect–that most people don’t think a mere allegation is enough. At any given time, there is a wide range of allegations about any person who has appeared on television. I know of one answering machine in Canberra that, whenever a certain academic appears on television, fills up with crazy rants about a secret society. There’s an online industry of defamatory rumours about judicial officers. And, of course, we had the classic allegation of Godwin Grech.
Despite this intuition that a mere allegation is insufficient, it’s not actually functionally true. During election periods, candidates can be subject to all kinds of rumours that influence decisions of the electorate. This is a well-known historical problem, feeding into policies such as having ‘media blackouts’ ahead of election day. Note that the definition of ‘allegation’ is extremely broad here. Really, it’s whatever negative claim about a candidate that might influence a vote.
This might seem a trivial point, but it’s the traditional method of accountability in democratic systems. You have to convince enough electors that you are above board in order to get elected. Or, rather, your reputation cannot be so poor that you cannot get elected.
Allegations can also be sufficient in themselves depending upon the political context. Some politicians can weather allegations; others can’t. The nature of the allegation might be similar, but their security within their political party can vary wildly. It is also worth noting quickly that allegations that circulate behind the scenes can also influence demotions and resignations (this, incidentally, is one of the unexplained parts of the Christian Porter saga: if the allegation was circulating among political circles for a while, why did Malcolm Turnbull promote him to the Ministry?).
So there’s a really unsatisfying quasi-answer to our question: Lancelot will resign or be sacked by Arthur depending upon the political context.
What people are after is a normative answer. When should Lancelot resign? When should Arthur sack Lancelot?
People seem to want hard and fast rules. There is an unspoken belief that there’s an objective benchmark. Christian Porter should have resigned, for example.
My view is that we would benefit enormously if people were more accepting that our positions are contestable. For example, in the Christian Porter example, my position is that the original allegation was not handled appropriately. He should have stood aside and the Government should have appointed somebody with a high degree of integrity to assess the available evidence independently. But I don’t think this was an absolute position. Somebody else could reasonably say that they don’t think the allegation was enough to trigger a more substantive response.
This gets us also to Berejiklian. There’s no objective requirement to resign because you’re being investigated by ICAC. The political context, however, made Berejiklian think it was necessary. Should she have resigned? Again, reasonable people can disagree.
So there’s a few things we can say in summary before moving on to the next point. Ultimately, the nature of our democracy is that voters in the relevant electorate get the final say on whether or not they’re satisfied with the response to an allegation. There’s no objective standard to the response and it’s perfectly reasonable to think that some allegations should be treated differently to other allegations. You might reasonably think that gendered assault should have a lower threshold for triggering a response than, say, an allegation of not declaring a bottle of wine.
The identity of the person bursting into the room to make the allegation turns out to be important. A bad faith, politically motivated allegation (whether or not it is actually bad faith), for example, might not trigger our expectation for a response. In this way, we tend to ignore the defamatory allegations about judicial officers aired in the disreputable swamps of the Internet.
What is interesting is that anti-corruption bodies tend to launder allegations. If it’s an official body, it’s no longer some random off the street complaining that penguins are stealing their socks. It’s an official body. There’s an official allegation.
In the case of the NSW ICAC, for example, this power is discretionary (not, as claimed by some on social media, mandatory). Section 20 of the Act says that the Commission may (not must) conduct an investigation and can take into consideration if it thinks the allegation is trivial, made in bad-faith, or if investigating the allegation is pointless due to the amount of time that has passed. What adds more spice to this is that section 12 of the Act states that the Commission must regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. So when exercising this discretion, it is constrained by these paramount concerns. Note the exact text: protection of the public interest and prevention of breaches of public trust. How should we read this in the context of allegations made about past (and not ongoing) activities?
This year hasn’t been a good one for public discussion about how to handle independent agencies making decisions that aren’t politically convenient (or even politically sensitive). My preferred reading of the ICAC Act is that ICAC should commence an allegation once they’ve satisfied their threshold for commencing an allegation unless there are countervailing reasons consistent with its paramount duty. This is not a strict reading, but it seems reasonable.
We saw this dynamic play out in a different way earlier this year: ATAGI making the call that AZ was not preferred for people under the age of 60. In fact, this caused a lot of our political theatre to break. ATAGI made the call and left it for the Prime Minister to explain the decision to the wider public. He infamously used the word ‘cautious’:
I know ATAGI has been very cautious and that had a massive impact on the rollout of the vaccine program. It really did. It slowed it considerably and it put us behind, and we wish that wasn’t the result but it was.
Which caused people to lose their minds. How dare the Prime Minister criticise ATAGI?! This is an extremely uncharitable reading of what was said, given the very next words out of his mouth were:
Those decisions are made independent of Government, and should be.
And so, you know, if we want a system where drug control in Australia is not run by politicians but by the professional medicos, well, sometimes that means they’ll be very cautious in circumstances like this. They didn’t go down the emergency approval and advice path that they did in the United Kingdom. Why? Because people weren’t dying every day as they were in the United Kingdom. So, you know, it’s a two-way street. We want those independent medical advisers, then that can sometimes mean a very conservative, cautious approach, which is what has occurred here.
And this is entirely reasonable and sensible. But what it showed was a real difficulty with dealing with announcements that weren’t politically convenient or politically sensitive.
We saw this again with the ICAC announcement. How could ICAC make this decision to investigate the Premier during a pandemic? Doesn’t ICAC know that there’s an emergency health direction in place?!
It’s wrong to think of ICAC as a group of automata who are simply compelled to behave in algorithmic ways. Those who were defending the decision of ICAC seemed to present an argument that suggested ICAC couldn’t be blamed simply because ICAC was compelled to act in this particular way. It definitely wasn’t. But just because ICAC had discretion does not mean the decision is suspect. It’s more reasonable to think of ICAC commencing an investigation when it’s met the threshold unless the presumption of commencing an investigation is displaced, even though this is not strictly compelled.
Let’s wind this up. Somebody bursts into the meeting of the Round Table with this allegation about Lancelot. Arthur and Lancelot should consider the allegation seriously, tailoring their response to the nature of the allegation, who is making the allegation, and the political context of the allegation… and the person making the allegation might also have a role to play in the consideration of how to make the allegation. If the allegation is on behalf of another (as in the case of ICAC), what threshold do they want to meet before airing the allegation (noting that their official role might change the calculus about the allegation)?
There are no simple answers here. There’s not a one-size-fits-all approach. The absolutism in the public debate should really, really worry us. We should also be worried about the inexpert adaptation of legal reasoning to inform public debate. As we’ve seen when outlining the above, the idea of ‘presumption of innocence’ doesn’t enter our discussion as we are dealing entirely in moral, social, and political considerations which are inherently squishy and contestable. What we need is for people to lead the discussion critically and in good faith, rather than justifying pre-existing partisan beliefs. Worse, the idea that this is reflective of some deterioration of standards that defined Golden Age of political accountability is particularly insane. These are difficult political questions that need mature, informed discussion.
Importantly, if the public abandons its role of holding parliamentarians to account, we’re all in trouble. There is a real danger that the public simply forms the view that all politicians are, to some extent or other, corrupt and that a certain level of corruption is tolerable. But this is exactly the intuition that we encourage when we have a public debate that is dominated by partisan hot takes.