Has monitory democracy spawned a monster in ICAC?

NSW premier Barry O'Farrell felt obliged to resign as a result of ICAC revelations when it wasn’t clear to all that he should. Daniel Munoz/AAP

“Monitory democracy” refers to the extra-parliamentary, para-legal, post-bureaucratic institutions of scrutiny that emerged as recently as the 1970s in Australia. Their evolution has swept us along in an unplanned way. The nature of monitory democracy is on display in New South Wales, where the Independent Commission Against Corruption (ICAC) represents a new form of accountability beyond the traditional ministerial responsibility and public service hierarchy.

The situation is made novel by the combination of institutional scrutiny and media saturation. In his book The Life and Death of Democracy, political theorist John Keane writes that the current phase of monitory democracy, together with communication abundance, “produces disappointment, instability and self-contradictions”.

How prophetic: what better way to describe the impact of ICAC?

The ICAC proceedings are a heady mix of lawyerly cross-examination, gutter smear and character assassination, forensic analysis and a prosecutor, Geoffrey Watson, which brings back memories of the O.J. Simpson trial. This is the stuff of a feeding frenzy for a content-hungry news media. As Keane observes:

Monitory democracy and computerised media networks behave as if they are conjoined twins.

Now the Greens and Transparency International are calling for a federal body similar to ICAC. Is it time to ask if this is how we want monitory democracy to work?

Power of revelation steamrolls all else

Monitory democracy is not able to be grasped within the framework of representative democracy. It does not fit that political geometry.

It is restless and richly conflicted. There has never been anything like this before because monitory democracy and communication abundance reduce the powerful and the institutions they control to rubble.

Witness the onslaught on perfectly respectable fundraising entities in some federal electorates. Everything is revealable and, potentially, corrupt. Keane writes:

Helped along by red-blooded journalism that relies on styles of reporting concerned less with veracity than with ‘breaking news’ and blockbusting scoops, communicative abundance cuts like a knife into the power relations of government and civil society.

Monitory democracy is as ruthlessly investigative of oppositions as it is of governments, of universities, of not-for-profits, business and trade unions, of indigenous people and the rich and the poor. Yesterday’s corrupt politicians are today’s accusers in NSW.

All attempts to provide explanation or propose improvements – public funding of elections, for example, or probity and ethical explanation that would be sensible in a time when scrutiny was less intense – collapse in the face of communicative abundance.

It is enough to have questionable behaviour revealed, yet it is soon yesterday’s news. Barry O’Farrell’s resignation as NSW premier did not last as a news item over the four days of Easter.

Good policy outcomes are scarce

The NSW ICAC exists at the prosecutorial end of Australia’s spectrum of monitory institutions, which ranges from prosecutorial institutions to administrative law institutions to revelatory institutions to truth and reconciliation institutions.

ICAC is full of contradictions. It is a prosecutorial institution that cannot prosecute. It hears evidence on the behaviour of individuals but its revelations change organisations such as political parties and even whole jurisdictions.

As well, strangely for a government organisation, it is a failure in achieving public policy outcomes. For instance, in 2010 its recommendations on lobbying were not accepted.

The form that ICAC takes is the key. It is set up like a court with the attendant trappings of the rule of law. Forensic barristers conduct accusatory proceedings defended by the full complement of barristers and legal clerks. Judges preside in solemn demeanour hearing traditional legal cross-examination.

The court-like proceedings of ICAC suggest a rigorous legal process of prosecution, where the evidence has been carefully selected and assessed in order to deliver a judgment of guilty or not guilty. But ICAC proceedings are not rigorous in this way.

Watson’s skill at arguing and inquiring into the sordid and the sensational makes it irresistible fodder for red-blooded journalists. Coupled with the media, ICAC proceedings shred power, good and bad, shred individual and organisational reputations good and bad, and shred system logic without regard for unusual or distinctive practices that are neo-patrimonial in nature and have grown up because they work.

The ICAC hearings, and in particular counsel assisting the commission, Geoffrey Watson, have given Australian media a show to rival the O.J. Simpson trial. Paul Miller/AAP

System fails to discriminate

Former NSW government ministers Eddie Obeid, Ian Macdonald and Chris Hartcher are perhaps prosecutable but Eric Roozendaal, O’Farrell and possibly Mike Gallacher are probably not. Nevertheless, all have been subjected to proceedings that have not discriminated between those who are prosecutable and those who are not.

This is the point. There is a failure to discriminate. The consequence is disappointment among citizens in all their political leaders (“a plague on all their houses”), a loss of confidence in the system itself and growing instability caused by the contradictions embedded in ICAC as a flawed institution.

ICAC appears to raise the bar on corruption, and nourishes what Keane calls the “utopian extravagances” of the Greens and Transparency International who see corruption everywhere. But ICAC fails to deliver. No-one is charged, no-one is found guilty or not guilty and ICAC and the media move on.

These are the reasons we should not establish an ICAC at the federal level.

Rethink the institutional form

What ICAC is doing is revelatory, and while not prosecutable, its form is that of a prosecutable institution. This problem can be resolved by rethinking the form a federal anti-corruption body could take.

No doubt revelation is urgently needed for system improvement but a revelatory objective should be delivered by a revelatory body. The Royal Commission into Institutional Responses to Child Sexual Abuse may suggest a partial solution. It has conducted 1509 private sessions without legal representation where people are asked to tell their “stories”.

Public and private hearings with legal representation can be conducted for the more prosecutable offences.

We need to think very carefully about the best way to fight corruption and learn from experiences in different jurisdictions. If our aim is to criminalise corrupt behaviour, then research shows that a prosecutable institution like NSW ICAC is the best solution.

However, the dynamics of monitory democracy can cause these institutions to mutate in unpredictable ways. If our aim is to improve the system and free it from corruption, we should learn through revelation and healing rather than punishment.

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