- The high risk of political corruption is the main reason for special ICAC-style oversight
- However, such bodies must avoid stifling democracy and allow governments to govern
- The public interest is more complex than it sounds
Serious research and open discussions about the design of a possible Commonwealth anti-corruption commission have been going on for years, but the government has largely refused to participate, even when the idea became a realistic possibility with the opposition taking it up at the start of the year.
Lofty concepts like the public interest, responsible government, a separation of powers and natural justice are all up for debate, but it’s not exactly uncharted waters. Issues around balancing the watchdog’s powers with the rights of individuals or the sovereignty of parliament have been considered deeply for decades and, despite a few high-profile controversies, have generally been managed well in the design of similar bodies in the states and territories.
University of Sydney professor Geoff Gallop, director of the Graduate School of Government, believes state corruption watchdogs have clearly proven their worth and favours a relatively powerful federal version.
Still, he says it’s important to be practical and avoid “a moralistic way of thinking about all of these issues, which in and of itself, can lead to bad outcomes” in his view.
“Good ideas often become bad ideas, by ignoring all other good ideas and ignoring the context,” the former Western Australian premier told the recent National Investigations Symposium, which was attended by a large contingent from various public sector integrity and oversight agencies.
Attorney-General Christian Porter refused to consider anything like the model proposed this week, claiming public servants and anyone else in the public sector, including contractors, could face “the most extreme coercive powers that exist anywhere in Australia” over something as minor as an “administrative irregularity” if the bill came to pass.
Its chief architect, public integrity and anti-corruption expert Professor AJ Brown, suggests Porter’s reaction amounts to a classic straw-man fallacy, in an op-ed for The Mandarin. The Attorney-General’s initial qualms seem easy to address, as Brown explains. And it’s worth noting his bill also provides for prevention, education, research and strengthened whistleblower protection measures.
Porter did not however raise the rights of politicians, or the need to protect elected governments from unjustified investigations into allegations of political corruption, that could undermine their democratic mandate to govern.
Perhaps he worried that raising this issue might sound self-interested, but in many ways it is even more important and difficult to address than the need to respect natural justice while rooting out garden-variety corruption.
There has been serious corruption in the Commonwealth bureaucracy – like foreign bribery in the polymer banknote business or drug smuggling aided by Border Force officers – and its massive procurement spending is ripe for rip-offs, kickbacks and so on.
But it is the potential for political corruption that most worries the general public — and a serious reduction in public mistrust and cynicism about government is one of the main things supporters of a national integrity commission hope it will achieve.
This loss of trust centres mainly on fears about systemic corruption of the political process itself. And at the same time, there is a lot more ambiguity about what is right and wrong for a minister, and who can compel, sanction or dismiss them, than there is for a public servant.
Clearly, compromises are required to balance the inherent contradictions built into the system, and Dr Gallop argued they deserved to be acknowledged, brought into open and made the subject of regular discussions.
Elected governments are there to govern, he noted, and any new constraints on them doing so should be considered carefully. But they are also responsible to the public interest, and it’s actually harder than you might think to pin down what that means, depending on the context and the circumstances.
Elections should mean the will of the majority is reflected in public policy – but it must be balanced by the idea that a “tyranny of the majority” should be also be avoided.
“Contradiction is the state of the world and you either ignore the contradiction, in which case you immediately get into trouble … or you take it into account and try and make it work, so that the two sides of the argument are there, and you transcend the two sides to a higher learning,” said Gallop.
Public servants aren’t the public’s main problem
Gallop began with a simple proposition: “There is corruption in politics, but politics is not intrinsically corrupt.”
The former WA Labor leader spoke of politics at its best: when different groups in society, even arch-enemies, eventually find common ground and agree to compromise for the good of everyone concerned. A lot of young people today will remember the same-sex marriage vote as one of those moments.
However, it must also be acknowledged that politics leads to power and power corrupts. It is constantly under siege from corrupting influences and tendencies and requires special oversight mechanisms but, Gallop added, “they need to be evidence-based and not destructive of the practice of politics as a force for good.”
“Now this is a challenging objective, but it’s important that we put it on the table,” he added.
Two key principles at the heart of the political system were identified by the “WA Inc” royal commission into corruption that reported to the Lawrence government in the early 1990s, which Gallop served as a minister. These were a fair and representative electoral system, and “the trust principle” behind the idea of responsible government.
The second means all people in government have a fundamental duty to work sincerely for the public interest. “And because it represents an ideal which fallible people will not, and perhaps cannot fully meet, it justifies the imposition of safeguards against the misuse and abuse of official power and position,” argued Gallop.
He went over four reasons why he believes such oversight is necessary. First, factions and parties are inevitable in democracy; secondly the police “traditionally have discomfort” investigating MPs; and thirdly, there’s major limitations on all other elements of “the fourth arm of government” — the media and others outside the system.
“And crucially importantly, there’s no standing body that deals with education around corruption. A commission of inquiry comes along, it reports, that’s the end of it,” Gallop told the conference.
“Under the traditional system of accountability, there was no permanent body that adjudicated, if you like, that discussed, that reported, that educated, and made [public integrity] an issue for our political society. [Having a standing integrity commission] makes it an issue, and it has to be an issue.”
So what is the public interest?
One of the WA royal commission’s reports in 1992 suggested a pretty clear description of political corruption, but again it relies on how the public interest is interpreted in a particular context or situation:
“Some ministers elevated personal or party advantage over their constitutional obligation to act in the public interest.”
Gallop suggested public servants would do well to seek a deeper understanding of the public interest – what it means in different situations, and when responsibilities overlap or conflict. He pointed to the advice provided by the New South Wales Public Sector Commission which is based on the writings of former NSW deputy ombudsman Chris Wheeler, as a good starting point.
Wheeler illuminates a very complex but also somewhat practical way of understanding what it means to act in the public interest in a variety of situations. For departmental heads, the practical reality is most of their advice is confidential and their minister gets the final say on what is the public interest, but in a variety of situations involving various decisions and determinations, and for other kinds of public sector employees, it’s not so simple.
Home Affairs secretary Michael Pezzullo said in a recent speech that only ministers could decide what was in the public interest, and the public servants that worked for them were “conjoined to this endeavour” at all times.
“There is no legitimate basis for contending that unelected officials have any purportedly supra-national responsibility as custodians of the public interest, somehow separately identified from the domain that is determined all too often to be that of politics,” he added.
A similar view was expressed at more recent forum on women in leadership by the head of the ACT Public Service, Kathy Leigh. She spoke of her pride in the role and the unique “satisfaction of knowing that by definition, what you’re doing is in the best interests of your community” because you are advising an elected government.
Others have a much more expansive view of an enduring, long-term and inclusive public interest based on universal ideals, and the idea also depends very much on one’s role and the specific circumstances. But again, it is much more complex for politicians because they retain their role as representatives in the legislature if they become ministers, creating an occasionally awkward duality.
To Gallop, governing in the public interest means “the obligation to go beyond the private, beyond the personal” but he says this is often difficult in practice for parliamentarians. “They’re in the business because they’re partial; that’s why they’re there.”
Partisanship and parochialism – literally representing a certain set of ideas or community – is part and parcel of a free society, he said. These common kinds of politics are embedded in the method of deciding who controls the executive offices, but can also come into conflict with how they discharge the responsibilities of those offices.
Governing in the public interest involves careful and prudent deliberation, or “actually considering an issue” before trying to build support for the resulting policy, in contrast to raw populism, in Gallop’s view.
Governments love to suggest they are putting their heads down, churning out good policy and implementing it — “getting things done” as the Prime Minister is fond of saying, not getting distracted by “the Canberra bubble” — and many link compromise to weakness, a lack of principles or untrustworthiness.
In Gallop’s view, this indicates a misunderstanding of how government works and this attitude rarely produces good outcomes. He touched on the work of prolific political scholar Bernard Crick, who generally disliked all absolutist views and political ideologies, and argued in favour of universal political virtues like prudence, conciliation, compromise and adaptability.
Crick also believed politics could transcend simple ideas like nationalism, populism, and fundamentalism, as well as simplistic hopes that we can just rely on majority rule, experts, bureaucrats or technologists to improve society.
This conception of politics as a system of compromise between the people who make up society — rather than a winner-take-all contest between two small groups for a few years of unquestioned power – also takes the focus off individual politicians.
What comes next?
The Attorney-general’s opening salvo against the Australian National Integrity Commission proposed by independent MPs this week did not bode well for a nuanced debate at the federal level.
He hyperbolically dismissed it as an “utterly unworkable” model and suggested he still hoped to satisfy the chorus of support for integrity reform with his own more conservative proposal that is yet to emerge – a hope that might be harder to maintain now, without a lower-house majority.
Cabinet has been considering two reform principles, he said in a segment on Sky News where anti-ICAC commentator Sharri Markson showed him how hyperbole is done. These are: building up the Australian Commission for Law Enforcement Integrity by widening its jurisdiction and providing more funding; and better “coordination” between it and other existing bodies relevant to integrity, of which Porter counts 13.
In contrast, politicians of all stripes have worked together and agreed on a sensible model that has now passed into law in the nearby ACT Legislative Assembly — a contrast reportedly noted by Chief Minister Andrew Barr.
The bill that is before federal parliament will be followed by a second on Monday, December 3, to establish a new code of conduct for MPs and their staff.
In Geoff Gallop’s view, the best way to improve integrity in politics is not more oversight but something that more oversight could encourage: more people of integrity getting involved, because in his experience, it is a field that attracts a disproportionate number of malign personalities.
Distrust of politics itself and the belief that corruption is its normal state of affairs are views more common among “good” people, in his opinion. This, he said, means they are more likely to avoid having anything to do with politics, while “the bad people are inherently political, because they have to be”.
“And if you’ve got the bad people who are clever and political, you’ve got the good people who don’t like politics, who’s going to win? The bad people.”