Opinion: Finding the middle ground on a national integrity commission model for Australia

By Scott Hamilton & Stuart Kells

Monday April 20, 2020

Straight down the middle. Adobe

Never before has trust in governments been so important. We recently presented to the Senate Select Committee on Administration of Sports Grants. What follows is an excerpt from our response to a Question on Notice from the Committee regarding the merits of the integrity commission models that have been put forward in our national parliament.

International integrity context

The concept of an integrity or anti-corruption commission has gained wide currency in the academic literature and in jurisdictions around the world. Countries in the Asia-Pacific region that have an integrity commission include China, Indonesia, Malaysia, South Korea and Thailand.

Integrity commissions perform integrity functions over and above those of public audit offices (which typically focus on agency efficiency, effectiveness and financial accountability) and ombuds (administrative accountability and complaints handling).

In Australia, there is currently no standing integrity or anti-corruption commission at the national level. The Commonwealth government is the ‘odd jurisdiction out’ on the southern continent: every Australian state and mainland territory has an integrity or anti-corruption commission.

The Australian government’s proposed integrity commission model

In November 2018, the federal government released a discussion paper on a proposed model for a Commonwealth Integrity Commission (CIC) as the lead body in a multi-agency anti-corruption framework.

The response to the federal government’s proposal has been mixed. There is clear disquiet in the community and among some integrity practitioners with respect to the proposed model. Put simply, it does not go far enough – with respect to its scope, powers and resourcing — to enjoy widespread support from the academic, legal and general communities.

In our view, the proposed model is a significant step forward and we should not let the quest for perfection leave us for another decade without an effective integrity commission at the national level. There is, however, an imperative for such bodies to be designed for the long term, and for them to receive and maintain bipartisan support, to ensure a holistic culture of integrity becomes the Australian norm.

The Senate’s alternative model

On 9 September 2019, the Senate CIC legislation passed 35 votes to 32. Labor joined the Greens, Centre Alliance and Jacquie Lambie to defeat the government.

The stated intent of the Senate CIC model is to create a nationally coordinated integrity framework, with an emphasis on prevention, supported by strong powers of investigation to enable criminal charges or other actions in response to cases of corruption.

The two integrity body models differ in important ways with regard to important design features, including whether the body would have the powers of a standing royal commission, such as the power to hold public hearings; whether and from whom it would receive referrals and complaints; the boundaries of the body’s scope and jurisdiction; the level of resourcing proposed; powers to investigate public entities and their boards; judicial processes when making findings of corruption; whistle-blower protection; and participants’ rights to silence and avoiding self-incrimination.

Plucking the best from both models

The new body needs to be explicitly subservient to parliament. In order to keep the body on track and focused, we strongly suggest establishing a direct link of authority and reporting to parliament, much the same as with the auditor general. The Parliamentary Joint Committee on Intelligence and Security provides a suitable bipartisan committee to make appointment recommendations with respect to the new body, and to monitor, oversee and resolve issues of concern regarding the NIC.

The new body needs wide powers, including power to ‘follow the money’ (piercing the corporate veil, and the donor veil) and to ‘follow the data’. This is crucial in the current digital era, and in the era of digital fraud.

The body needs the powers of a standing royal commission, including the ability to conduct hearings in public. This is a significant difference between the proposed models. The Government’s model is well conceived with respect to its design and basic powers, but an effective integrity commission needs the powers of a royal commission, with discretion to hold royal commission-style hearings, subject to a public interest test. The Hayne banking royal commission provides an excellent model for how investigative powers can be applied in the public spotlight for the public good.

The new body needs to fit in explicitly with other integrity institutions. This includes practical referral powers (make and receive) vis a vis the ANAO, AFP and other integrity organisations. It is in the ‘making room’ for the new body (and then providing it with sufficient and unique powers and functions) where we also see divergence between the models. The government’s proposed model limits investigations to a narrower range of suspected corrupt conduct compared to the senate model.

We agree with the government’s proposal that the CIC should not replace agencies’ own responsibility to prevent, detect, investigate and respond to internal misconduct and other integrity issues; including by educating staff and having in place relevant controls. The CIC should inform this work through its insight into whole-of-Commonwealth risks and best practice. We recommend that the new body be designed as a ‘higher court’, to allow itself to investigate and resolve issues that have not been satisfactorily addressed by the other entities. The default setting should be ‘go to another entity first where practicable’.

The body needs to be well resourced. Appropriate resourcing is essential, at a level that matches the body’s role and functions, and that gives it adequate certainty and independence. We would suggest committing ten years of funding, to be reviewed every five years to provide certainty.

In both models there are missed opportunities and unresolved design questions. These relate in particular to innovation in integrity frameworks and investigative tools; research into integrity best practice; advocacy and promulgation of integrity principles and conduct, including greater openness and innovation in the fight against fraud and corruption; establishing greater consistency in integrity frameworks and expectations; relationships with state-based integrity bodies; and establishing an explicit place for the free media and NGOs in the integrity system – seeing journalists and NGOs unequivocally as partners in integrity rather than as opponents or a problem to be addressed

In summary, we believe there is a sensible middle ground between the principal integrity commission models that have been put forward in the Senate and the House. Such a model would have the powers of a standing royal commission, with discretion to hold open, royal commission-style hearings, subject to a public interest test; would apply legal principles consistent with our courts; would be structurally subservient to the national parliament; would have wide and well-resourced investigative functions; and would be designed explicitly to complement our other principal accountability and oversight bodies and our overall public integrity architecture.

We suggest a new Senate Select Committee be tasked with coming back with a National Integrity Commission proposal that can receive bipartisan support.

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