Mark Dreyfus: new corruption watchdog must be ‘delicately designed’ and have strong teeth

By Stephen Easton

Tuesday January 29, 2019

One of the many questions that hinge on the result of this year’s election is what kind of new anti-corruption measures will be put in place for federal politicians and public servants.

The Morrison government has, of course, proposed a Commonwealth Integrity Commission in a fairly prescriptive discussion paper and plans to introduce a bill in the dying days of this parliament. It convened an advisory panel on December 18 to commence public consultation — submissions close this Friday (February 1) — while working on “successive drafts” of legislation in consultation with “key public sector stakeholders” at the same time.

The government plans to introduce its bill in the first sitting week of the year, which begins on February 12, according to an account of a consultation meeting in Melbourne last Thursday in The Sydney Morning Herald. Journalist Kate McClymont reports two senior public servants also indicated the government is likely to stick with the model proposed in its discussion paper despite strong criticism from senior members of the legal profession.

It’s very doubtful the government’s bill will be passed before the election, and if Labor wins the process will restart.

When the opposition adopted the idea of a federal integrity commission one year ago, it announced seven design principles that describe a powerful body with powers like a standing royal commission. According to Shadow Attorney-General Mark Dreyfus, a Labor government would start a similar process to hammer out the finer details.

According to Dreyfus, “designing a body as complex and as significant as this is properly the work of government, with all the resources available to government” in Labor’s view.

“In government, Labor would embark on a process of consultation and hard work, with the benefit of expert advice, in order to get this right,” he said, in a recent lecture given at the Queensland University of Technology and distributed by his office.

“In particular, we are keenly aware of the balance that must be struck between the desire to eliminate corruption from public life and natural justice for those who may be investigated.”

“There are some well-publicised cases of individuals who feel their reputations have been unfairly damaged by appearances at state-based anti-corruption bodies.”

One member of the Morrison government’s advisory panel, New South Wales Deputy Senior Crown Prosecutor Margaret Cunneen, is one of those individuals. She successfully argued the Independent Commission Against Corruption had overstepped its powers by investigating the claim she advised her son’s girlfriend on how to avoid being breath-tested immediately after a car crash in Cunneen’s car, but her reputation suffered from the affair.

The ongoing argument is whether this bad press was of her own making, or of “an organisation that has debased itself by its petty and personal efforts to damage me in every area of my life” as she described the ICAC in an interview with a sympathetic Daily Telegraph.

“Some elements of the media have taken these cases and run with them in an attempt to prove a case against anti-corruption bodies generally,” Dreyfus said.

“I don’t see that is the lesson that is to be learned from those kinds of cases. I think the lesson to be learned is that anti-corruption bodies are difficult to get right and must be very delicately designed.”

Other panel members are the former Western Australian public servant Mal Wauchope, who served as head of the Premier’s department and public service commissioner, and former Australian Federal Police commissioner Mick Keelty, whose experience as inaugural chair of the Australian Crime Commission was cited as an important qualification for the advisory role.

The Shadow Attorney-General said it was hard to know what might be uncovered by a “dedicated, overarching anti-corruption body” especially if it was able to act on tip-offs from the public.

“If the creation of this body encourages more whistleblowers to come forward, that can only be a good thing,” he argued. “That will only occur, of course, if there is a general faith that the anti-corruption body is robust and effective, and is likely to catch those who are suspected of corruption.

“Without that faith, why would a whistleblower potentially risk his career coming forward?

In terms of education and prevention, Dreyfus said a strong body that successfully exposed malfeasance would have a deterrent effect. “But there must also be a proactive element to the National Integrity Commission – we envisage the Commission’s staff giving seminars to the public service, to staff of politicians and others, about their work and how to avoid corrupt practices in their workplace. No such thing occurs at the moment, and it’s a big gap.”

Dreyfus made several familiar arguments around the need for a powerful integrity commission: the huge sums of money spent by Commonwealth agencies; perceptions of corruption among the public; misconduct witnessed by public servants; and high-profile federal corruption that has come to light before, like the foreign bribery cases involving the Australian Wheat Board and the Reserve Bank’s publicly owned polymer bank note business.

“I was deeply concerned to read in January of this year that a survey of federal public servants by the Australian Public Service Commission revealed that five percent of respondents reported seeing misconduct in their workplaces.”

Labor’s spokesman also quoted the survey by Griffith University researchers that suggested about 85% of Australians thought some federal members of parliament were probably corrupt and 18% thought most or all of them were. “I’m not suggesting that’s a reflection of reality – but that is a very, very worrying number of people who think there is corruption among the ranks of our federal politicians.”

Things are starting to look up slightly in terms of public trust, according to the latest update to the popular Edelmann Trust Barometer, and a federal anti-corruption body could help push the numbers for government in a more positive direction.

Dreyfus warns this disenchantment with politicians gives more support to populist anti-politics candidates who end up being even more disappointing.

“Every three years, Australians head to the ballot box and vote for their preferred candidates. Every three years, the social contract between Australians and their elected representatives is renewed – the voter gives the government of the day power to govern, in return for the expectation that members act in the voter’s best interest.

“Without going into any specific international comparisons, there are some serious consequences when voters feel that contract has been broken. When they rebel against so-called “politics as usual”, that’s usually a sign that they are rebelling against the political system full stop. And that is an outcome no-one should want.”

But while it’s mostly politicians that the public are fed up with, he argues the government has not explained how its proposed integrity commission would be able to hold them to account. The government’s model is basically a beefed up Australian Commission for Law Enforcement Integrity that has few more agencies under its watch, coupled with a new public sector division to cover all other public servants, plus politicians and their staff.

“The two wings have vastly different powers, and are in effect two different bodies,” said Dreyfus.

“The ACLEI wing would retain all its present investigatory powers and the ability to hold public hearings – although notably ACLEI has not held a single public hearing since its foundation in 2006.

“The second wing, however, would be far more limited. It could not self-initiate inquiries or act on tip-offs from the public, as it would have to rely on referrals of allegations of serious or corrupt conduct from agency heads. How that would work in the case of politicians is unclear. It would not hold public hearings, full stop.”

Labor’s version would be able to make findings of corruption, whereas the government is adamant it should only compile briefs for the Director of Public Prosecutions.

Dreyfus argued the threshold for investigation — a reasonable suspicion that a crime has been committed — was too low in the government’s preferred model, because it did not capture “serious misconduct” like policy decisions that unfairly favour major political donors. And contrary to the government’s position, he said the agency needed the powers to run surveillance and seize evidence because they had proven “vital” to similar agencies at state level.

“If politicians and their staff are seen to be somehow exempt from the integrity mechanisms that other parts of the Commonwealth are subject to, how is that right? How will that help to restore trust in government and in politics at large? It doesn’t seem right to me and I don’t think it will seem right to many Australians either.”

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