A new federal integrity system in the making? The case for a Commonwealth anti-corruption agency

BY A J BROWN

11.08.2017

Will Australia continue to evolve towards a general-purpose, stand-alone anti-corruption agency at the federal level?  Does it need to?

Important light on both questions is about to be shed by two events: publication of the report of the Senate Select Committee on a National Integrity Commission (due 13 September), and, preceding it next week, Australia’s first ever national conference dedicated exclusively to the issue: Accountability and the Law (17 August).

To the uninitiated, or people who don’t follow anything outside New South Wales, the answers might seem easy.  Everyone knows that Australia’s first and most famous public sector anti-corruption body, the NSW Independent Commission Against Corruption, is a vital part of the integrity system of that State.  Moreover, every Australian State now has such a body; and even the Northern Territory is about to enact one, while the ACT is grappling with its own model.

Against this tapestry, it is easy to say Australia’s federal government is now the ‘odd person out’ for lacking a similar agency.  But in fact, these questions are more complex than may appear.

The NSW ICAC is also almost as notorious for some of the ways it has pursued its statutory tasks, as it is celebrated for exposing the grand corruption that has seen former ministers like Edward Obeid and Ian McDonald imprisoned for misconduct in public office.

And there is no ‘one size fits all’ among Australia’s multiple anti-corruption bodies.  While there are similarities in objectives, there are also fundamental differences in the powers, structures and accountabilities of each and every agency, right down to variations in statutory definitions of ‘corruption’ itself.

It’s therefore hard to identify, for the Commonwealth, what constitutes best practice in light of our own experience at State level – and what are the key weaknesses and problems to avoid.  And this challenge has to be married with at least four others.

Challenges surrounding a general-purpose, stand-alone anti-corruption agency at the federal level

First, it’s not actually a new issue for the Commonwealth.  An additional, independent anti-corruption agency has been on the cards since at least 1996, when the Australian Law Reform Commission (ALRC) recommended one as part of new oversight of the Australian Federal Police.  Since then, there’s been plenty of debate, parliamentary committees, and even cross-bench Bills.

Transparency International (TI) Australia first recommended such an agency in 2005, when Australia’s first national integrity system assessment documented weaknesses at a federal level.  With the nation’s second integrity system assessment now underway, TI Australia’s latest submission to the Senate Select Committee provides an updated rationale for what could and should happen.

So, why is it taking so long?

In part, it’s due to a second reality.  Contrary to the beliefs of some (especially people who may not follow anything outside New South Wales), the Australian Government is not actually a ‘green field’ site for such an agency.  It does already have one, in part.  So the debate is actually as much about what its future should be, as about needing to create something new.

When the Australian Commission for Law Enforcement Integrity (ACLEI) was created in 2006, some observers (including this author) predicted that its jurisdiction, being too narrow, would inevitably grow – from an initial brief to deal with corruption issues involving only two law enforcement agencies, to wider federal regulatory agencies where corruption risks were no less.

And so it has occurred.  Today, ACLEI’s name is increasingly a misnomer, with agencies as diverse as Immigration and Border Protection, and Agriculture, also at least partly covered.

The work of this Senate Select Committee does not come in isolation, therefore.  It follows on successive recommendations from the Parliamentary Joint Committee overseeing ACLEI, which led to these various expansions, and has ensured the question of a more general-purpose anti-corruption agency stays on the table.

The third reason we haven’t got there yet, is the fact that the Commonwealth Government is actually different to the States.

Here, we are not talking about any fantasy that the federal government is somehow immune from the same types of corruption risks that manifest at State level, or throughout the world.  While a few pockets of people may still believe this, they are increasingly few.

However, in many areas, the roles of the federal government that give rise to corruption risk, or its responsibilities to deal with corruption, are genuinely different.  It’s the level of government that must deal with the lion’s share of international and transboundary corruption issues, and with corporate conduct and regulation nationally, as well as its own public sector conduct.

This gives it a responsibility to handle many of the underlying corruption risks affecting the nation as a whole.  It should be expected to handle at least some of these issues differently – hopefully, more strategically – for which some different types of institution are probably required.

Hence, the importance of another existing Commonwealth investment, the AFP-led Fraud and Anti-Corruption Centre, as the coordination point for all its criminal corruption-related investigations.  Is this enough, in itself?  Probably not.  But is it a good idea?  Most certainly yes, and again, means that at federal level, anti-corruption is not some kind of greenfield site.

Finally, include the different emerging approaches to ensuring parliamentary and political integrity, and we see more reasons why a federal solution needs to be built carefully.

Certainly, a great virtue of State anti-corruption bodies is that their purview includes all public officials – including elected representatives.  So, when serious issues arise about abuse of parliamentary entitlements, illicit or improper political donations, conflicts of interest or worse involving our politicians, these agencies have sometimes served as the vital backstop guardians of integrity at the political level.

Inevitably, this is the role that probably makes our federal parliamentarians most nervous about such an anti-corruption body.  Is their own monopoly of self-regulation about to end?  Is such a body the right way to end it?

The stark fact is, though, that in 2017, it has already begun to end.

For criminal matters such as theft or fraud, the rule of law means that federal politicians have always been subject to oversight by the Australian Federal Police and the courts – here, the main case for an independent body is to relieve the AFP of sometimes having to investigate the same people it must answer to.

But as well, the Turnbull government’s creation of Australis’s first Independent Parliamentary Expenses Authority, this year, shows not every anti-corruption function has to be invested in the one agency.  Naturally, this Authority can’t do everything needed to safeguard politicians’ integrity.  It would need to be upgraded to a full Standards Authority, as it is called in the UK, to do that, along with reforms to federal campaign finance laws and enforcement, and an anti-corruption agency to lend its expertise to major issues when necessary.  But again, it shows the answers for closing the federal gaps don’t rely simply on copying a non-existent anti-corruption agency “template” from the State level.

Moving forward

Are these design challenges surmountable?  Most certainly, as TI Australia’s submission to the Committee demonstrated, along with many others.

Indeed, for public lawyers the resolution of these challenges is a reason for being.

Is it imperative that we do so?  Absolutely.  Public confidence and the continued relatively high quality of Australian governance rely on it.  Not only are there real corruption issues that we have not been dealing with well, but we are part of a world in which corruption risks, like other “disruptions” to the security and stability of our social and economic fabric, are unfortunately not receding but growing.

Should we expect the Australian Government or the Senate Select Committee to change spots overnight, and suddenly decide that what the federal level needs is a copy of the NSW ICAC?  Probably not.  And that’s probably a good thing.

Because what the Commonwealth needs is a “next generation” anti-corruption body as part of a larger, overhauled framework, commensurate with its roles and risks, not an imported, somewhat dated model delivered from the tortuous experience of our most corruption prone State.

What we should expect of the Parliament and Government, however, is a more credible path towards the new alternative, on a timeframe much shorter than the two decades it has taken to stumble this far, since the ALRC’s 1996 recommendations.

And public lawyers, integrity practitioners and civil society will need plenty more gatherings in the near future to shape these answers – recognising that, while anything that looks like a single, ‘silver bullet’ solution is probably wrong, this is no excuse not to get on with the task.

A J Brown is is Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith University.  He is also a board member of Transparency International Australia, project leader on the Australian Research Council Linkage Project ‘Strengthening Australia’s national integrity system’, and a participant in The Australia Institute’s Accountability and the Law Conference.

Suggested citation:  A J Brown  ‘A new federal integrity system in the making?  The case for a Commonwealth anti-corruption agency‘ on AUSPUBLAW  (11 August 2017) <https://auspublaw.org/blog/2017/08/a-new-federal-integrity-system-in-the-making/>