Government says corruption watchdog must protect public servants, before losing control

By Stephen Easton

November 27, 2018

The federal government has rejected the idea of a powerful federal anti-corruption commission over concerns about the rights of Commonwealth employees and contractors, but is running out of time and space to respond to mounting pressure for integrity reform with its own proposal.

Some breaking news as we hit our deadline for The Juice today: the government is now in minority in the House of Representatives, following the announcement that the Member for Chisholm, Julia Banks, has quit the Liberal Party and will sit as an independent.

Attorney-general Christian Porter ruled out government support for the corruption watchdog proposed yesterday by the Member for Indi, Cathy McGowan – or any other that is “commensurate or similar” to it – because it would subject too many people working in the public sector to “the most serious applications of coercive power” over minor matters and violate their rights to due process.

Porter also said it was “no secret” that ministers had been working on an alternative integrity reform package for about six months, but in the meantime support for a new anti-corruption body was continuing to spread, while Cabinet was mostly preoccupied with other events.

The chorus of support has grown considerably outside the parliament boosted by an increasingly coordinated media campaign, backed up in particular by eminent members of the legal profession. Most recently, 34 former judges sent an open letter to the Prime Minister, who dismissed the snowballing campaign as a “fringe issue” in question time yesterday.

“Existing federal integrity agencies lack the necessary jurisdiction, powers and know-how to investigate properly the impartiality and bona-fides of decisions made by, and conduct of, the federal government and public sector,” they argued.

Investigative journalists have lent support, publishing more claims that the existing watchdog, the Australian Commission for Law Enforcement Integrity, has been straining under pressure with limited resources and often fails to take strong action against corruption, even within its limited remit. That prompted a statement today from the Australian Border Force about the ongoing efforts to combat corruption in its ranks, but meanwhile, ACLEI has a further 1000 public servants under its watch, following the creation of the Department of Home Affairs.

A leadership switch, former Prime Minister Malcolm Turnbull’s resignation and the resulting by-election had already left the government hanging by a thread in the House of Representatives with only the Speaker’s casting vote; now the resignation of Banks leaves the Coalition exposed with McGowan’s bill in play. These distractions have also presumably slowed progress towards a different proposal from the government for a watchdog on a tighter leash.

Even before today’s surprising turn of events, the government’s ability to wrest back control of the debate and counter the proposal with its own alternative was looking shaky. It could not stop the House endorsing the Senate’s previous call for the government to establish a new anti-corruption commission, not necessarily McGowan’s specific model. Backbencher Llew O’Brien had already said he might cross the floor if “the appropriate legislation” was up for debate, and hinted that some other government MPs felt the same way.

After meeting Porter to discuss his concerns, O’Brien suggested the front bench should have been more open about these plans within the party, while Shadow Attorney-General Mark Dreyfus questioned why the government had not revealed its own ideas for integrity reform.

While claiming no offence was intended, Porter aimed to present McGowan’s National Integrity Commission as a poorly designed proposal typical of legislation drafted without the support of the public service. However, it was developed in close consultation with some of the nation’s leading academic experts in public sector integrity, who ensured McGowan was well appraised of the issues Porter has now raised.

“Any public servant, or indeed contractor with the public service, who did anything that, it could be argued, impaired confidence in the administration of the Commonwealth, would prima facie have committed a standard of corruption, so long as it was also a very minor civil offence or something that could attach some form of disciplinary proceedings to it, which could be as low as an administrative irregularity,” Porter said yesterday.

“Now the application of that sort of very low definition of corruption across the entire public sector, including public sector journalists, and based on that trigger definition, applying the most extreme coercive powers that exist anywhere in Australia, on the lowest conceivable definition of corruption, we consider is an utterly unworkable model.”

Among the cross-bench, unpredictable Queenslander Bob Katter is perhaps an ally for Porter, having said yes to a federal integrity commission in general, but expressing extreme concerns that it “could have disastrous implications toward innocent people if steps are not taken to protect them” from personal vendettas.

Fairness, due process and safeguards are obviously legitimate concerns, and have been addressed in slightly different ways at state and territory level over and again, with most parliaments accepting the need for strong royal-commission-like powers, tempered by oversight by a parliamentary committee as well as restrictions on the use of public hearings and reports, where reputations might be unfairly damaged.

According to Griffith University professor AJ Brown, one of the key researchers who worked with McGowan, the commission’s working definition of corrupt conduct “could be clarified fairly easily” and if the government has a better idea to help with that, “then it should put it on the table”, he told Fairfax reporter David Crowe.

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