Yes, very clearly. There is a big difference between an action that was not illegal or that was not corrupt but is made so by retrospective legislation and an action that was always illegal or corrupt and was investigated some time later because more resources were applied to investigation by establishing a commission.
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In many countries police officers expect bribes to supplement their extremely low pay. I agree that this is a bad thing, but do not necessarily see enforcement of laws against bribery as solving the problem.
What is corrupt today was not necessarily always considered corrupt - nepotism for instance has been quite popular historically (and still is for royalty). I am not as certain as you that we can say âthis is good; this is badâ and apply that standard to the past and the future. The real world is grey (not something I would have said in my youthful idealism).
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I was not trying to define good and evil for all time but contrasting changing the rules retrospectively and applying more resources to identifying and dealing with matters that society of the day says are illegal or corrupt. Your comments are quite orthogonal to mine.
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I donât think this is âvery clearâ. Yes, there are arguments to be put for and against.
For a start, âillegalâ basically doesnât come into it. Most things people talk about in the context of FedICAC are not illegal. If they are illegal already, there really isnât a need for FedICAC.
If the intention is to introduce a definition of âcorruptionâ and then make all such âcorruptâ acts âillegalâ then that is by definition retrospective if FedICAC is going to be permitted to investigate acts before FedICAC comes into existence - and most people would not want that true retrospectivity.
Regardless, this is only a transitional problem, not an ongoing or long-term problem. So it is valid to make a decision to ignore it. It will not undermine FedICACâs effectiveness to prevent it looking backwards before its existence. The core purpose will be achieved without letting FedICAC look backwards before its existence.
(I believe there is legal precedent to say that it is OK to create FedICAC and then let it look backwards before its existence however it would complicate the legislation e.g. how far back? In theory, what? all the way back to something that happened in 1940? why stop there? 1901? why stop there? And there are always risks with judging past acts by present standards, as @postulative writes.)
Clearly this element of looking backwards takes away the idea of influencing MPsâ and public servantsâ behaviour. If FedICAC is created then all affected individuals will be on notice that they can be dragged before FedICAC and have their reputation trashed. So there is an incentive to avoid possibly âcorruptâ behaviour in the first place. That canât work when FedICAC looks backwards before its existence - although I guess it creates an incentive to destroy evidence of past âcorruptâ behaviour. 
I think also that realpolitik says that FedICAC shouldnât be able to look backwards before its existence if you want the widest possible political support (which we have already seen in the negotiations over the secrecy provisions).
The very existence of this Royal Commission sets a bad precedent that FedICAC should not want to follow. You should come into government to make the positive change that you want to see in the world, not entrench yourself in government by disadvantaging your political opponents, which can only really create a toxic cycle of tit-for-tat.
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Not relevant to my point. The commission acts on whatever guidelines it does regarding illegality or corruption. I am not re-frying those beans again and again. I was talking about altering whatever the rules are retrospectively not what those rules are.
Let me take another stab at it, as that paragraph in my post might have been confusing.
Suppose member of parliament X carried out act Y in 2010.
Suppose Alboâs NACC Bill comes into force on Jan 1, 2023
Suppose X is referred to the NACC on Jan 2, 2023.
Suppose that the NACC years later hands down a finding that Y is âcorrupt conductâ.
Section 8 of Alboâs NACC Bill contains the âmeaning of corrupt conductâ.
Prior to the NACC Bill there was no definition of âcorrupt conductâ in Commonwealth law. 1
Therefore even though Y was not âcorrupt conductâ under Commonwealth law in 2010 when Y was carried out, it has now been found to be âcorrupt conductâ.
This is exactly the sort of retrospectivity that we should reject - and would definitely reject if you replace âcorrupt conductâ by âcriminal conductâ (as it would be a clear breach of human rights).
If you read the Explanatory Memorandum for the Bill, Note 10 specifically acknowledges that there is retrospectivity and that it could give rise to the perception of being a breach of human rights (under the ICCPR).
Note 148 et seq are a weak attempt by the Albo government to justify this. In other words, that is their response to the charge of retrospectivity.
Note that it is Section 8(4) that specifically makes it retrospective, and would have to be kept but reversed in order to avoid retrospectivity.
To be clear, I am not attempting to argue that you should change your mind about whether to support retrospectivity, only that the decision is not âvery clearâ.
1 This is a fairly bold claim from me because it is difficult to prove a negative. I havenât examined every single Commonwealth act of parliament. However if anyone wants to claim otherwise then the onus is on you to provide the reference to Act and Section.
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I think the whole point of an inquiry, a Royal Commission, a coronerâs inquiry, and indeed the NACC, is to look into the past to find out what happened, and why.
So it must be retrospective. That doesnât mean retroactive.
Whether there is retroactive action taken is up to the courts to decide based on whether some action was legal or not at the time.
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It must look backwards (weâre not yet at Minority Report) but it need not look backwards before its existence, given that its coming into existence is also what defines âcorrupt conductâ.
âRetrospectiveâ in the context of legislation means that the legislation changes the legal position of something that has already happened. This Bill does that - and the Explanatory Memorandum admits that. âRetrospectiveâ in the context of legislation is generally frowned upon.
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The ex- Secretary of DHS says not me.
So far we only have public servants testifying. They are divided between those who were not directly in the line of fire saying they are sorry they were silent or didnât know and those who were directly responsible but say it wasnât them wot dunnit.
The last time I heard âNot Meâ so much was at a birthday party for small children when the cake was upset and fell on the grass.
The reality is everybody from the Secretary in every department that was faintly involved, at least two ranks down, would have known all about it and would have been actively discussing it informally even if they were not in the direct line of decision making. If you think luncheon clubs gossip they have nothing on Canberra public servants.
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One thing I see as a recurring theme in this sad saga is that the Governments of the day seem to like creating new names for departments, shifting roles and responsibilities around, splitting reporting across different ministries, or even have department heads reporting to multiple ministers.
Is this a deliberate strategy to muddy the waters in the event the inevitable inquiry into the inevitable stuffup occurs?
Seems plausible deniability is all the rage, and helped by the confusion created by all this department changing.
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This has always been the case, and is generally for a reason other than diluting responsibility.
Different governments have different priorities, and those priorities change over time. One big example of this is there was once (over 30 years ago) a Commonwealth Department of Housing and Construction. It got split in two, and the halves went their different ways. Then the Commonwealth decided it shouldnât be involved in âconstructionâ at all as the private sector could do it, and so that part of the Department of Administrative Services was abolished. Then the government of the day decided that administrative services were only a small part of the job of the public service, and merged âadministrative servicesâ into the Department of Finance and Administration. The government also decided most of these âadministrative servicesâ that were provided centrally (printing, motor vehiclesâŠ) could be more efficiently be provided by the private sector, and sold them off. Now we have just Department of Finance - although it is still responsible for a few âadministrative servicesâ.
Similarly, when the Rudd government gained power it created the Department of Climate change, which was abolished as soon as the Abbott government came in. Different priorities, and actually telling the public what those priorities were in the names of the entities responsible for them.
I wonât go through the entire list, but just one example from the Albanese government is that the Department of Health became the Department of Health and Ageing. The department already had responsibility for the health impacts of ageing, but this name change is a signal that the government thinks policies on ageing are important and should all (or at least largely) be under one roof.
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I doubt it. More like foolishness, such as the recent BOM fiasco. It gets pretty silly.
Take the Dept of Social Services. That was the name given when it was created and it matched the Act that gave it powers and responsibilities. Then some time in the late 70s or early 80s it was changed to Dept of Social Security, now I believe it is back to Dept of Social Services. A rose by any other name âŠ
Somebody did a marketing course and thought the new name sounded cooler, nicer, more caring, more efficient, who knows. They only got as far as M101, if they had done the second year they would have realised that when you have a captive clientele nobody gives a fig what you are called. For each change there was a cost in new stationery etc of course but it was considered worth it somehow.
Maybe something in the environment in Canberra leads to belief in nominative determinism, such as the article on urology by researchers named Splatt and Weedon.
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Whatâs in a name?
A name change is also in order for two other departments under the new government.
The department of health will now be known as the department of health and aged care.
And the department of infrastructure, transport, regional development and communications will now be known as the department of infrastructure, transport, regional development, communications and the arts.
So ITRDC now becomes ITRDCA?
It is just a game of silliness. And for those totally bored just delve into the frequent changes to the AAOs and how often roles and responsibilities shift all over the place.
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âThe Artsâ!
Which Arts? There are many practiced in Canberra.
Those of apportioning blame, avoiding accountability, misdirection, self promotion, creative accounting, survival skills, to suggest a few âŠâŠ
Possibly back on topic if some are coming to the fore in the RoboDebt inquiry.
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Hereâs an answer not previously given: Each change of department name can result in a new domain name, so they can take down the web site under the old domain name and thereby make all sorts of awkward content disappear. (Yes, it might still be on the Wayback Machine but for Joe Public it may not ever come up in search engines any more, or disappear down the page ranking so as to be effectively invisible.)
If you ask me, governments should be banned from ever taking down department web sites. Instead each page should be automatically watermarked with the date the domain ceased to be current, but remain visible on the web.
One fun aspect of all this department-changing is that if legislation grants certain powers explicitly to the responsible minister, it can sometimes be difficult to know who exactly can wield those powers.
I think that is genuinely part of it. The name and the combinations express both the new governmentâs priorities and their ideological agenda.
Two things take care of that.
The MOG. Machinery of Government. And frequently issued AAOs, Administrative Arrangements Orders.
Secondly, ministers being sworn in to positions defined in above AAOs. Sometimes secretly. Yes you Scomo.
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Do you have any example of this happening or is it just a hypothetical?
And yet for all the hoohaa I am still waiting to hear the details of the constitutional amendments that the government is proposing to ensure that this canât happen again.
You said things disappear, how does that link show me that?
