Our experts rated the Coalition’s model as either very unsatisfactory or a fail. Most agreed Labor’s proposed model is much better, but said a lot more detail is needed.
Corruption in politics is a big issue for Australian voters this federal election.
Over 10% of respondents to The Conversation’s #SetTheAgenda poll said they wanted candidates to be talking about integrity, corruption and a federal independent commission against corruption (or ICAC) this election campaign.
One voter asked us: “Will they implement a national anti-corruption commission (with teeth!) that can investigate retrospectively?”
Research from Griffith University and Transparency International Australia found 67% of Australians surveyed supported the idea of a federal anti-corruption commission.
So we asked five experts to analyse and grade the major parties’ policies on the issue of a federal ICAC.
Here are their detailed responses:
Labor
Kate Griffiths, Deputy Program Director, Grattan Institute; Adam Graycar, Professor of Public Policy, University of Adelaide; A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith University; Gabrielle Appleby, Professor, UNSW Law School, UNSW Sydney, and Yee-Fui Ng, Associate Professor, Faculty of Law, Monash University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
The Coalition has firmly stood its ground on a model that protects the public sector, including politicians, from the normal scrutiny of an integrity commission. Despite widespread criticism, and two rounds of consultation over three years, these deficiencies are yet to be resolved.
To allay concerns about corruption and misconduct, an effective integrity commission must be public-facing. It should be able to act on tips and information from the public, media, and public officials (including whistleblowers) – not just from other agencies. And it needs to be able to report publicly on its findings. Strict reporting lines behind closed doors can breed mistrust.
The Coalition’s model also has a narrow focus on criminal conduct, which means the commission won’t have the power or scope to lead corruption prevention efforts across the public sector – including through investigating serious or systemic corruption risks.
Under the Coalition’s model, the law enforcement division of the commission has all these powers, but the other division – the one that oversees politicians – doesn’t. A secretive, narrowly focused integrity commission is unlikely to be effective at weeding out corruption or building public trust.
Over the past decade, Australia’s score and ranking in the global Corruption Perceptions Index has fallen significantly. Its rank has fallen out of the top 10 least corrupt, from 7th to 18th since 2012. This is one of the justifications for a federal anti-corruption body.
What we have before us in 2022 are two documents proposing an anti-corruption agency – a 347-page draft bill for a Commonwealth Integrity Commission (CIC) from the government, and a one page statement from the opposition.
Both are responses to public unease, and are responding to a diminution in public standards. Standards in government have diminished over the past decade. There have been findings of inappropriate behaviour, both personal and political, and the responses have not satisfied the general public. This has placed Australia in a very unfavourable light when compared to other affluent Western nations.
Coalition
Anti-corruption agencies fall into three categories – guard dogs that bite, watchdogs that bark, and toothless tigers. The government’s proposed CIC model has been criticised as a toothless tiger.
When dealing with the public sector (as opposed to law enforcement), it limits corruption to criminal behaviour, and it does not allow for the commission to undertake “own-motion” investigations. This means the commission cannot investigate public or whistleblower complaints. It can only act when it becomes aware of an allegation while investigating an issue or holding an inquiry. This is different to suspected corruption in law enforcement, where the commission can act on allegations. It does not allow for public hearings, and it limits what can be reported.
Not all corruption is criminal. Many activities are lawful but awful. But the bill does not recognise this. A good anti-corruption agency would have three main functions: investigation, prevention and education. The government’s bill has only the first, and even then in a very limited way. But there are 347 pages of text to say this.
The government’s bill will not prevent the stacking of tribunals and boards with party apparatchiks. It will not prevent attempts to buy votes with non-transparent pork barrelling. It will probably catch out small scale operatives who behave badly and rort our systems. As proposed, it will leave people at the top of the food chain relatively untouched.
The Coalition’s draft Commonwealth Integrity Commission Bill was released publicly in November 2020 but never introduced.
It would risk seeing many genuine anti-corruption concerns swept under the carpet, by being mostly limited to criminal investigations, with no direct accessibility to the public or whistleblowers, and not having the full powers of a royal commission available when needed (contrary to government claims). For example, no facility for public hearings in respect of most of its jurisdiction.
Despite some other positive steps, like increased jurisdiction and funding for the existing Australian Commission for Law Enforcement Integrity, the Coalition plan has failed to engage with the opportunity to develop solutions that would produce either a workable or a best practice model, despite two large public consultation efforts over the past three years.
This unfortunately has also now undermined public confidence in whatever emerges from the process – if anything ever does, given the prime minister’s indications a third Morrison government would not be interested in any new solutions or deviations from the draft bill, and would only introduce legislation in that form and if the opposition first backed it.
The government’s current position gets a 'fail' from me for two key reasons.
First, while they did deliver an exposure draft for a Commonwealth Integrity Commission at the end of 2020, there were shortfalls in the design of that body. These gave rise to concerns that what was being created was a veneer of an anti-corruption body, which would, in fact, operate to shield public officials – and particularly parliamentarians – from full transparency and accountability.
These shortfalls included the bill’s narrow definition of public sector corruption, the high threshold required to start a public sector corruption investigation, no power for public service whistleblowers or members of the public to report public sector corruption, no obligation on parliamentarians to report corruption, no power for the commission to commence its own investigations without a complaint, and the forced secrecy of the body’s investigations.
Second, the government has failed to pursue this matter as one of urgency and priority. It failed to respond to the substantial feedback it received on its bill, and to introduce a new, revised bill to parliament, now more than a year since it conducted consultations on its draft.
It has also actively prevented parliament from debating a private member’s bill introducing an integrity commission.
The government’s proposed Commonwealth Integrity Commission (CIC) is watered down and weak.
First, the bar for investigation is too high, requiring a reasonable suspicion of corruption amounting to a criminal offence before an inquiry can even begin. This is a difficult hurdle to clear.
Second, the proposed CIC will not have the power to hold public hearings, which reduces transparency and accountability. Public hearings ensure proceedings are not cloaked in secrecy. They also increase public trust. The CIC also cannot receive complaints directly from the public, although other integrity bodies have this power.
The government’s proposed model would fail to achieve its main aim of exposing corruption in the public sector.
Establishing a federal integrity commission was a promise made by both major parties at the 2019 election. Labor has reaffirmed its commitment going into the 2022 election and has sought to distinguish its model from the government’s. While we don’t have the same level of detail to compare, Labor’s proposal differs in several key respects.
Labor’s commission would have broader scope and powers, including ‘discretion to commence inquiries into serious and systemic corruption on its own initiative or in response to referrals, including from whistleblowers and complaints from the public’. These powers will be critical if the commission is to help prevent corruption, not just unearth it later.
Labor has also promised a ‘transparent’ commission, with powers to hold public hearings and ‘make findings of fact, including a finding of corrupt conduct’.
However, questions remain over the design details, funding, and timing. Labor says it will introduce legislation this year but this must then pass parliament. A strong integrity commission is a priority for many independents and minor parties, so if there are weaknesses in the detail or funding, a Labor government may still need to strengthen their model to get the deal done. This is where the Coalition’s model stalled and appears stuck for the foreseeable future.
The ALP has a one-page statement that basically says it would do better than what the government proposes. It limits a commission’s scope to serious and systemic corruption, allows for findings of corrupt conduct against politicians, and supports public hearings.
While transparency is desirable, there can be a downside if public hearings are used for political purposes or as witch hunts.
Labor’s position could be strengthened if an independent panel were to advise the commissioner if a public hearing would be in the public interest.
This proposal is very short on detail.
Labor was instrumental in finally cementing a political consensus that reform is needed, by first committing to a national integrity commission in January 2018. The design principles it announced then remain sound from a policy perspective, in so far as they go.
Labor is on record as voting in the Senate in support of the strong and fully developed National Integrity Commission Bill 2019 (previously National Integrity Commission Bills 2010, 2018, now Australian Federal Integrity Commission Bill 2020) introduced over the years by the Australian Greens and Independents Cathy McGowan, Dr Helen Haines and Senator Rex Patrick.
However, Labor’s own principles so far remain based on copying one or two of the better state anti-corruption agencies when it gets into government. Larger, more detailed thinking is needed about the roles a lead national anti-corruption agency needs to fulfil, as well as better ways to fulfil them, including on issues of fairness, reputation, corruption prevention and whistleblower protection.
In 2018 Labor also originally under-costed what was required, later committing in 2019 to match or exceed any Coalition spend.
Labor goes into the 2022 election promising to pass legislation for its national integrity commission before the end of 2022. But, unless it produces more detail, it faces a challenge to meet this deadline, within the short political window any new government has to secure quality integrity reforms before its appetite starts to erode.
I’ve given the ALP a strong mark, but not an 'A'.
The ALP has now committed to introducing legislation for a federal anti-corruption commission before the end of the year. This gets a high mark for committing to reform as a matter of priority and urgency.
But the ALP hasn’t released a full draft of its proposal, which makes it more difficult to provide an analysis of the model.
Its 'design principles' for an effective anti-corruption watchdog look promising, particularly in terms of responding to some of the concerns with the Coalition’s model relating to jurisdiction, ability to receive complaints and conduct its own investigations, and the power to conduct public hearings in some circumstances.
However, as is often the case with these things, the devil is in the detail. And I’d like to see this before I give the ALP full marks for its model.
The Labor Party has promised a 'powerful, transparent and independent National Anti-Corruption Commission’ (NACC).
Their model is proportionate, balancing the strong powers of the NACC with oversight mechanisms. It has a lower bar of investigation based on allegations of serious and systemic corruption, rather than the high CIC threshold of criminality.
The NACC would be able to hold public hearings where the Commission determines it is in the public interest to do so. This approach balances the demands of transparency and the seriousness of allegations with any unfair prejudice to a person’s reputation or unfair exposure of a person’s private life.
The NACC can act in response to referrals, including from whistleblowers and public complaints, consistent with other integrity bodies. The NACC would have all the coercive powers of a royal commission. These strong powers would be balanced with oversight by a parliamentary committee and the courts.
In short, Labor proposes a robust commission with strong powers, coupled with checks and balances to ensure it does not abuse its powers.
Kate Griffiths, Deputy Program Director, Grattan Institute; Adam Graycar, Professor of Public Policy, University of Adelaide; A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith University; Gabrielle Appleby, Professor, UNSW Law School, UNSW Sydney, and Yee-Fui Ng, Associate Professor, Faculty of Law, Monash University
This article is republished from The Conversation under a Creative Commons license. Read the original article.