Anti-corruption commissions are under threat across the nation and the possibility that NSW Deputy Commissioner Nick Kaldas might be charged for allegedly lying to an Ombudsman's inquiry highlights again the debate around the powers granted to anti-graft agencies.
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A case unfolding in Victoria likewise raises questions. There, the state watchdog, the Independent Broad-based Anti-corruption Commission, IBAC, is fighting in court to exercise its power to sensationally expose in a public hearing incidents of alleged police brutality.
Those opposed to such public hearings say that creating such a spectacle involves no right to silence and diminishes a person's chance of getting a fair trial in the event they are charged. These people would say it tips the balance too far against individual rights and towards the nebulous aim of exposing corruption.
In response, the Ombudsman, IBAC and ICAC counter that their great evidence-gathering powers have been granted so they can publicly expose wrongdoing and the rotten culture that allows it to occur. Their job is not to arrest and prosecute.
Ombudsmen in NSW and Victoria can table reports in Parliament that expose as corrupt or incompetent a public servant while ICAC and IBAC use public hearings and reports to do this.
If the Victorian police officers' actions at the centre of the current court skirmish are the product of a culture of impunity that breeds brutality – and that is yet to be shown – then IBAC argues it has every right to hold a public hearing.
On Wednesday in NSW, ICAC had its jurisdiction greatly narrowed by the courts in a development that significantly weakens its powers and reach. Although the issues involved in the Victorian case are different, this development will trouble IBAC (which is already far weaker than ICAC), because it signals a preparedness by courts to wind back the powers of such agencies.
In the Kaldas case, the NSW Ombudsman argues that in order to publicly expose long-hidden malfeasance (of which Kaldas was a victim), it needs to subject witnesses and whistleblowers, including apparent good guys like Kaldas, to coercive questioning powers which require them to tell the truth in private hearings.
Kaldas is facing possible charges because he has been allegedly caught misleading the Ombudsman to protect another official. This official leaked Kaldas documents which exposed the police bugging scandal, in which rogue officers tapped the phones or homes of Kaldas and other police without due cause between 1999 and 2001.
Kaldas says he expected to enter the Ombudsman's office as a victim. He left after hours of questioning with the possibility that he could be charged. Is this fair?
Kaldas, and plenty of his supporters, including lawyers and police, would likely argue that if he is charged, the Ombudsman will have used its power against him unjustly and disproportionately. The Ombudsman would counter by saying that, in order to expose the truth, it must be able to demand it from senior officials.
The question of how fairly, and proportionately, the Ombudsman has used its powers on Kaldas will be reviewed by the Director of Public Prosecutions as part of any decision to charge him.
The question of the fairness is also central to whether agencies such as the Ombudsman, ICAC and IBAC – as well as those pushing for the creation of a national corruption watchdog – can expect public support into the future.
If an agency oversteps the mark, it risks losing public support; regardless of whether it's acted within the law. But the public also expects its high officials to tell the truth when under oath.
