NSW ICAC Model: 'Shame culture' institution not suited to Australian democracy

Poor timing of the announcement into the investigation of Gladys Berejiklian aside, the NSW ICAC model represents a 'shame culture' institution that is not suited to Australian democracy.

The announcement by the NSW Independent Commission Against Corruption (ICAC) of an investigation into the NSW Premier's alleged "breach of public trust" the week before lockdown ends was inherently political, despite it being within the institution’s powers.

The many people who voted for the NSW Government can be justifiably upset by the timing and the fact that unelected bodies like ICAC can influence political leadership in times of crisis. What system of redress do voters have toward this unelected body? 

Citizens do not vote for ICAC, but ICAC has created a situation that has toppled the leader of the party the majority of voters in NSW wanted to be in government. 

In the context of the current crisis, NSW citizens may be justifiably confused by the over-reach of power given to ICAC. Adam Smith's ‘impartial and well-informed spectator’ would be right to question whether ICAC’s actions were politically motivated.

In addition to preventing corruption, the model for ICAC in NSW has created a situation where an unelected body can ruin a state premier's reputation by doing little more than raising a suspicion. Simply put, the model for the NSW ICAC, originally designed to root out endemic corruption in 1980s NSW, has more recently focused on a process of ‘naming and shaming’.

To be sure, ICAC has had its successes in fighting corruption, but since its founding in 1988, three NSW premiers have now been named and shamed. The first two premiers lost their positions but were subsequently found not to have broken the law.

And a third premier has been shamed initially through collateral damage from a public hearing into another person, and subsequently through a public announcement of an investigation. This resulted in her resignation.

ICAC's powers need to be reviewed. Its current model can disrupt political leadership at the whim of an announcement. Three unelected bureaucrats, one full-time and two part-time commissioners, effectively hold the power of veto over state premiers in NSW.

A similar anti-corruption body has been debated at the federal level. But rather than the NSW model, the proposed federal model would not have public hearings. Some say that this is wrong - if it is good enough for others then it is good enough for the political elite.

But imagine if a prime minister was wrongly named and shamed and the federal government imploded like the NSW government is imploding this week? There is a clear incentive for enemies of the Australian state to use this system to destabilise our national government. Arguably, a federal anti-corruption body in the same mould as NSW represents a national security risk.

The NSW ICAC requires reform. Unelected bodies that have such power over our liberal democratic system are a destabilising force. That a third NSW premier has fallen from the 'shame culture' response created by ICAC suggests the efficacy of ICAC has been compromised by this capability.

But even if ICAC finds that the NSW Premier acted unethically (as opposed to illegally), is the political instability worth the finding? Voters are best able to decide who should lead them. Finding political solutions to political problems is a basic principle of liberal democracies.

The key issue is prosecuting something versus publicly naming and shaming. ‘Naming and shaming’ creates collateral damage that cannot be undone. Public hearings that destabilise our political system do not make politicians more accountable. They distract our political leaders from doing their jobs, especially in times of crisis. 

The concept of the rule of law provides for the rights of individuals and the inherent principle of innocence until proven guilty. Nevertheless, in cases such as those relating to national security, the burden of proof can be reversed. But the point is that the 'accused' engages with the legal process.

NSW ICAC investigations, when announced, do not facilitate the concepts of 'innocent until proven guilty' or rely on the reversal of the burden of proof. ICAC announcements are a form of naming and shaming that reinforces the perception of guilt.

The NSW ICAC model represents a 'shame culture' institution that is not suited to Australian democracy. Any federal anti-corruption body would benefit from closer adherence to the accepted norms of the rule of law and avoid the naming and shaming model adopted in NSW.