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Christian Porter’s proposal protects the rule of law

Christian Porter’s proposal for a federal anti-corruption commission has achieved something remarkable. The Attorney-General has positioned the Morrison government as the champion of human rights.

Equally remarkable is the reality confronting Bill Shorten’s Labor Party: unless it takes great care, Labor could find itself pushed into the arms of a disgraceful gaggle of authoritarians who are prepared to sacrifice key elements of the rule of law.

Those who know their history will recall that the rule of law is the first target of authoritarians. It stands between the rights of the individual and the power of an overmighty state.

Those who dismiss Porter’s plan say all they really want is a federal anti-corruption agency with “teeth”. But when that term is unpacked, what they want is something based on the discredited NSW Independent Commission Against Corruption. That would mean the creation of a parallel system of rough justice in which fundamental rights such as the presumption of innocence and the right to a fair trial would be stripped away. This cannot be allowed to happen again.

The danger confronting Labor was made clear just before Christmas: Arthur Moses SC, the incoming president of the Law Council, endorsed key parts of Porter’s plan — and he did so because he is persuaded the checks on the power of the new agency would protect the rule of law. His argument is simple: an integrity commission that does not respect the rule of law or the rights of individuals has no integrity at all.

Those who say they want an agency with teeth see nothing wrong with shaming the innocent along with the guilty at public show trials. In NSW they took place before a media pumped up by briefings, without the rules of evidence, before any charges were laid and before any court had decided anything.

This is supposed to “educate” the community about corruption. Yet how could it? Public hearings take place before — not after — any finding of a corruption by a court of anyone else.

Those backing such a system must have forgotten what happened in NSW.

But their memories might soon be jogged by Margaret Cunneen SC whose stance against ICAC in that state has been endorsed by the High Court, the NSW prosecution authorities and an independent report to the NSW parliament.

Porter has appointed Cunneen to an advisory panel on the design of his new agency — a move that should ensure there will be no repeat federally of what appened when ICAC in NSW was run by former commissioner Megan Latham.

Cunneen was pursued over what she was alleged to have said after a traffic accident involving her son’s girlfriend. Even ICAC’s own Robert Waldersee, who was executive director of corruption prevention, was against it.

He wrote: “I struggle to see that it is of a seriousness to meet the intent of our act, and it certainly is not systemic.”

The High Court agreed and found ICAC had exceeded its jurisdiction. David Levine, who was the commission’s independent inspector, produced a report for parliament that detailed evidence of what he said was ICAC’s unlawful conduct, serious maladministration and abuse of power. Some model.

Chris Merritt, Legal Affairs Editor
The Australian
WTF (used with permission)

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