Australia’s first anti-corruption commissioner, Ian Temby QC, has panned a proposal to give a federal integrity commission the power to sack parliamentarians.
Temby, who was appointed founding commissioner of the NSW ICAC, told Crikey the idea floated by newly elected “teal” independent Kylea Tink was “wrongheaded”.
Tink defeated Liberal Trent Zimmerman for the seat of North Sydney, and has argued for the introduction of a code of conduct that would have consequences for MPs, suggesting that a new integrity commission could have the power to sack MPs if necessary.
“I think that this is wrongheaded on more than one level. Firstly, it’s not the case that the NSW ICAC has sacked any member of Parliament, although it’s commonly contended that it sacked three premiers,” Temby told Crikey. “Of course each of them chose to resign.”
“It should never be the function of such a body to sack anybody. What should happen in relation to members of Parliament or ministers or judges or anybody who holds office subject to dismissal by Parliament is that an investigation should be conducted if the allegations are sufficiently serious. Findings will then be made concerning the conduct in question. And those findings should go to the Parliament for the Parliament to decide what action, if any, should be taken.
“It must always be for those who hold the power and responsibility to take that action. And that’s how it’s been. And it’s how it should continue to be.”
Tink’s office said she had no further comment and that she “looked forward to productive and robust conversations” about the federal integrity commission.
Temby’s comments mark his first intervention in the debate over the mooted federal integrity commission, with the Albanese government promising to introduce legislation for the body by the end of the year.
The NSW model
Temby served as head of the NSW ICAC from 1989 to 1994.
He told Crikey that a new federal body “could do a lot worse” than use the NSW body as a model, although he added that NSW was not a perfect model.
“Probably the definition of corrupt conduct in the NSW legislation is more complex than it ought sensibly to be,” he said.
“The essential characteristics for such a body are that it has all royal commission powers, that it can commence its own investigations, whether on complaint or otherwise, that it must investigate anything which is referred to it by the Parliament and that it should report to the Parliament and not to the executive. It should have the power to examine matters retrospectively, not simply in relation to future allegations.
“Unless it satisfies those criteria, it’ll be ineffective and a piece of window dressing.”
On the contentious question of public hearings, Temby said it was “very important” that the body should have the power to do so provided it was a case of real significance and “judged by the commission” to be in the public interest.
“The courts don’t hold hearings in public because they think it’s fun to do so. They do so because they’re performing a public function and it’s right that they should be held to account and closely examined for their conduct in conducting hearings. And it’s only by doing it in public that they can be held properly accountable. That’s one strong argument in favour of public hearings,” he said.
Holding public hearings had also built “a strong degree of public confidence” in NSW and was a key reason why the NSW ICAC had continued for more than 30 years.
Defence procurement
In terms of specific areas, Temby nominated the multibillion-dollar defence procurement sector as one deserving of scrutiny.
“Experience tells us that whenever there’s a lot of money involved, and that money is moving around, then some people will sometimes fail to resist the temptation to grab a bit for themselves. And to my mind, it’s highly improbable that there has not been any corrupt conduct in relation to, for example, defence procurement over the years. I don’t know that that’s happened, but it seems to me to be highly improbable,” he said.
Pork-barrelling, he said, might be corrupt, though it would depend on how it was defined in the legislation.
“It will depend upon circumstances. Sometimes it may be if the conduct is sufficiently crass and obviously unjustified in the public interest,” he said.
Ian Temby’s ICAC famously bit its creator when the commission found that then premier Nick Greiner had engaged in corrupt conduct when he found a public service job for a political adversary, former Liberal MP turned independent Terry Metherell. As reported in legal newsletter Justinian, the finding was later overturned by the NSW Court of Appeal — a decision that “knocked the stuffing” out of Temby, he wrote in his memoir.
Temby’s memoir also reportedly records his “wistful” observation that Greiner “remains very bitter towards me to this day”. Now retired from the bar, Temby had put Greiner in the political furnace before, during and after his tenure at the ICAC.
As the first Commonwealth Director of Public Prosecutions (DPP), appointed by then Labor attorney-general Gareth Evans, he prosecuted High Court judge (and Labor appointee) Lionel Murphy for attempting to pervert the course of justice.
As DPP, it also fell to him to pick up on extraordinary allegations from the Costigan royal commission that Kerry Packer — codenamed “The Goanna” — was inter alia involved in drug trafficking and murder. Given a lack of evidence no prosecution ensued.
Temby is right about Tink’s proposal being wrong-headed. Wanting a commission to have the power to sack MPs suggests Tink is way out of her depth and needs to stop and think for a while, and maybe get some advice on basic principles of representative democracy. If this proposed commission could sack MPs I’m sure it would soon be abolished for its excessive and oppressive power and influence over elected representatives, who should answer to their voters, not the commission. There should of course be consequences if such a commission makes adverse findings about an MP, but acting on the findings cannot be a matter for the commission.
Perhaps Ms Tink is demonstrating why she needs more than one Senior Adviser.
David Pocock on Insiders was good on this issue, suggesting there would be an issue with an unelected body having the power to sack elected representatives. But..I would cut Tink some slack here: ‘wrong-headed’ is personally abusive, suggesting she’s mentally defective. It could be she’s created a worthwhile conversation. Should there be a defined process for handling corrupt behaviour, like Sinodinos’s scams with Sydney water? The stocks, possibly?
Your understanding of ‘wrong-headed’ is entirely different to mine. I have only ever understood it to mean not thinking straight, deluded or misguided about some particular issue. I cannot think of any example of it having the meaning you give.
The two things that Tink seems to have missed are: first, removing somebody from a position is in general (and for obvious reasons) the responsibility of whoever put them there to begin with; and second, it is always a bad idea for those who investigate potential misconduct and so on to also impose penalties.
But of course there should be serious consequences for corrupt behaviour. There are the provisions in the constitution which disqualify an MP is defined circumstances, but that’s quite limited and not much help here. The criminal law should be used when it applies, and it would be good to see some of the great big gaps that currently exist filled by some new offences. (It also needs the AFP to discover some will to act, because at present the AFP exists only to bury such allegations, particularly if they involve federal ministers.) But beyond that there will be a large area of misconduct falling short of criminal. Some parliamentary discipline committee (i.e. not stacked by the government) enforcing a robust set of conduct standards would be useful. And maybe some mechanism for voters recall an MP who has adverse findings.
you are saying that politicians can do what they like because they where voted in for a fixed term come one think again b y holding them to count is the best move ever and you can see why they are screaming there heads off in protest against that very thing no its a very good and smart idea
The Parliament, the courts or, eventually, the people are the appropriate authorities to deliver consequences. The Commission’s job is to examine and expose.
There’s no personal abuse involved, Don, nor the suggestion of ‘mental’ deficiency; ‘wrong-headed’, as quoted in the article, refers to an unsound idea or proposal, rather than a personal failing.
Similar to “misguided.”
My reference to abuse may have been a tad hyperbolic, but self-evidently ‘wrong-headed’ refers to the person, implying a conclusion that there’s something wrong with the head of a person who can propose whatever they proposed. So of course does deluded and misguided.
No, it does not, neither self-evidently nor by implication.
From the article:
“Temby … told Crikey the idea floated by … Kylea Tink was “wrongheaded”.”
So it’s a description of the idea.
And from my first comment, where I use the same word:
“Temby is right about Tink’s proposal being wrong-headed.”
It is explicitly used in relation a proposal.
Agree. There are two visible indicators involved with corruption; what the actual act of corruption is, and what the government in power is seen to do about it. Take the latter out of the government’s hands, and you take the responsibility for action with it. Have we not learned from Morrison?
There’s a strong tendency these days for people to want to palm responsibility for politically difficult things onto “independent” bodies – Tink’s suggestion seems like a clear case of this tendency being applied to handling corruption.
It’s a bad idea in general, to my mind, and in this case even more so, but it’s not really an indication that Tink is out of her depth, just a product of her era . . .
you will find tink is absolutely on the right track as these politicians seem to think they are above the law and just sit there doing nothing as they collect there obscene rates of pay and superanuation
Have a look at how the Casino criminals were handled by NSW and VIC state governments, nothing happened just like the bankers in 2009 in the USA and City of London. The excuses given and swallowed was the lower level employees would be out of a job. This is rubbish as we are talking about the corrupt at the top being locked up.
If you people think things are gonna change think again as all you will get is a debate about social issues as a side track
and they will go on as they always have with a middle digit to the public.
Read widely and follow the money, our system is a realtionships system and the elites stick together take the money and have the general public arguing with each other over stuff as they laugh and shaft us. Have a look at the board of the reserve bank, 1 is a director of an investment finance company head quartered in London, And remember females can shaft us just as well as men can.
Experienced and smart old heads like Tenby must be heeded in the design of a commonwealth integrity commission. And Peter Coldrake’s report in Queensland also constitutes very wise advice.
No-one may stand for parliament if they have been convicted of any charge than carried more than a 2 year imprisonment penalty – regardless of what sentence they might receive.
Just ensure that ICAC – whether federal or state – investigations are rigorous and hand well proven briefs of evidence to DPPs.
The only necessary change would be to abolish the quarantining of testimony from inclusion in those briefs.
I still cannot understand how Greiner’s actions were not corrupt. Nor could the independents at the time who really sacked him. I also lost all regard for Margaret Cunneen and I am convinced that was a set up to damage the ICAC. The NSW one has also scuppeered an almighty mob of crooked local government shonks. It is fine by me and I would welcome a federal version. Gladys B, by the way failed the basic requirements of NSW Public Service anti corruption training at an incredibly stupid level.
in south australia every single politician voted to reduce the powers of icac so none of them can ever be held to count for any thing that hints of corruption this bill was passed in both houses in one day raced over to govt house for there pawn to sign into law that very same day no politicians must be held to count and at any hint of corruption be sacked on the spot and a by election held at the expense of the party that member was part off