The case for a federal ICAC: QCs versus the service commissioner

By Harley Dennett

October 1, 2014

QCs lined up to push for a federal corruption watchdog this week, but senior officials are pushing back against the idea of independent oversight. Public service commissioner Stephen Sedgwick was among those quick to defend the Australian public service culture as a goldfish bowl of transparency, resilient to the problems seen at recent state commissions and declaring “the reward is not worth the cost” of changing the current system.

A parliamentary committee is deciding whether to expand the powers of the Australian Commission for Law Enforcement Integrity to encompass the entire federal bureaucracy — for cases like the Australian Wheat Board oil-for-wheat scandal. Currently ACLEI has jurisdiction over just six agencies officially designated responsible for law enforcement functions — and in some cases only over specific staff within those agencies — while an official sitting at the next desk is immune.

However, the inquiry keeps coming back to the idea of creating a new federal anti-corruption commission that is independent of law enforcement agencies, government or the Parliament.

Former court of appeal judge Stephen Charles QC said the current system requires the voluntary co-operation of a large group of government bodies, but as nobody has ultimate responsibility, it was easy for resource-strapped agencies to assume nothing was going wrong because somebody else was paying attention. Pushing for a new independent commission on behalf of the Accountability Round Table — an advocacy body of retired judges, journalists and parliamentary officers — Charles said ACLEI was not a body that stands alone:

“We have no doubts that the persons who work in and run ACLEI are thoroughly well intentioned and competent people … but if the voluntary co-operation breaks down then there will be gaps.

“[ACLEI’s] funding and staffing is comparatively slight. It’s not anywhere near the strength or operational ability to deal with corruption throughout the Commonwealth empire. Generally we would accept that those who work for the Commonwealth are thoroughly honest, decent, hardworking people. The problem is that the risk of corruption is increasing all the time, and unless you’ve got a body fully focused on that risk the problem is going to be there and remain uncovered.”

Roger Gyles QC of Transparency International Australia echoed those sentiments and added that ACLEI was limited by its activity-based jurisdiction. Gyles said support and administration staff not covered by ACLEI were potential soft targets, vulnerable to influence:

“If you take a government department which has law enforcement functions but other functions, it is arbitrary to have ACLEI come in to look at what one person is dealing with, but the person at the next desk is not covered.”

The introduction earlier this year of the Fraud and Anti-Corruption Centre as part of the Australian Federal Police was inadequate to the task, Gyles said, as it too was limited to the activities of just eight agencies, rather than broader cases of corruption.

“To be honest, I think that’s the greatest protection we have, that culture that says we will not tolerate inappropriate behaviour and we will deal with it.”

Beyond the recent high-profile political scalps taken by the New South Wales Independent Commission Against Corruption, the QCs were concerned about embarrassing cases of Commonwealth officials acting corruptly, including the Reserve Bank officials in the note printing scandal and the Australian Bureau of Statistics worker pleading guilty to leaking in an insider trading scam. More important still were the cases that go unnoticed because they fall through the oversight gaps.

The majority of cases that are investigated relate to inappropriate access by an official of an individual’s private information unrelated to that official’s duties. ACLEI concluded one such investigation in July this year of an Australian Federal Police member alleged to have accessed and misused AFP data not related to his work.

The public sector commissioner told the committee the benefit in capturing other agencies in ACLEI’s jurisdiction must be weighed against the cost and burden on ACLEI’s existing expertise as well as duplication. Sedgwick said the case has not yet been made:

“I think there’s quite a difference between saying there might be some other activities that are similar to the higher risk activities that ACLEI’s expertise is valuable and important to addressing, saying something like that should apply to the whole of the public service, to me that case has not been made.

“The data I see does not justify that kind of expenditure, or some of the associated red tape that goes with reporting burdens that associate that kind of high-intensity framework that ACLEI represents. So for me, the art here is getting the balance between the nature of the risk, the nature of the overhead that’s borne ultimately by taxpayers, and the reporting and compliance burdens …

“One of the things we’ve learned out of the experience that ACLEI has had — with respect to investigations that it has undertaken in some of the high-risk areas, as opposed to the generality of the public service — is that the availability of forensic skill to investigate quite complex issues has been invaluable to resolving those matters. An environment where you have a modulated series of responses makes sense in terms of the relationship between the risk being borne and the cost involved.”

Stephen Sedgewick
Stephen Sedgewick

Sedgwick has strong views on proportionate responses to misconduct, so while such ACLEI investigations may be appropriate in those serious cases, he hopes agencies consider alternatives to the full force of the law when dealing with pinched pens:

“We at the commission are at pains to say to the senior public servants that one of the fundamental responsibilities of a leader in the public service is to maintain public trust, confidence of the government, confidence of the Parliament, but also confidence of the community at large in the integrity of the public service.

“It’s also important that little things not be allowed to grow, that little things are dealt with in a little things way, not dealt with with the full force of the law. We encourage agencies to deal with little things informally, quickly, not engage in masses of process but nonetheless to deal with it. To be honest, I think that’s the greatest protection we have, that culture that says we will not tolerate inappropriate behaviour and we will deal with it.”

Sedgwick hopes agencies use a two-tier approach, with response proportionate to the nature of the risk:

“… in the sense that when an agency discovers that it has before it an incident that is of the scale and complexity that would benefit from the forensic resource that ACLEI represents, then it will be open to the agency head to call on ACLEI for assistance.

“When ACLEI says there’s a smoking gun here, it’s not in the agency head’s interest to not co-operate. I can’t see a circumstance where a reasonable request from ACLEI would not be responded to reasonably.”

The public service goldfish bowl

The Public Service Commission will release its latest survey of perception of corruption as part of the State of the Service report on December 1, but we can surmise that Sedgwick is happy with the results. He told the committee:

“The public service operates in a goldfish bowl. We have both a culture and a legal framework that encourages the disclosure of whistleblower reports in which individuals believe they’ve observed something which could be on the scale of knocking off a pencil, through to fraud against the Commonwealth … the capacity is there for a member of the public or an employee of an agency to raise issues when they believe they exist.

“The data we report in the State of the Service report show the number of public servants that are formally investigated under the code of conduct — even more so those who are formally found guilty under the code of conduct, or where the sanction is sufficiently serious to warrant termination under the code of conduct — are relatively few. [The] number of cases that lead to a termination are in order of 30 to 60 for a year, not large numbers.”

In July then-integrity commissioner Philip Moss, who heads ACLEI, wondered if “we aren’t getting an ICAC by stealth” while being questioned by the parliamentary committee about increasing his jurisdiction to the entire public service. Moss said then:

“At this stage, I am not looking for work. I am sad to say that I am fully committed in the work that I am doing.”

However, he advised it was challenging for investigative agencies like the Australian Federal Police or ACLEI to investigate themselves. Since then, Robert Cornall, former secretary of the Attorney-General’s Department, took over as acting integrity commissioner during the search for a replacement.

The AGD is conducting a review of ACLEI’s already expanded jurisdiction to cover agencies beyond its original scope over the AFP and Australian Crime Commission — particularly with respect to the small selection of enforcement staff covered at the Department of Agriculture. First assistant secretary for criminal justice Iain Anderson said that report would be given to the minister soon, but it was already clear that “soft target” backroom staff were a potential risk if not covered by ACLEI. He told the committee:

“It’s important that ACLEI has the powers to cover those backroom staff if the agency is already within its jurisdiction.”

However, ACLEI is a small agency, Anderson said, and current resources would allow it continue to cover its current six agencies.

The parliamentary committee’s recommendations are not expected until 2015.

More at The Mandarin: New AFP commissioner Andrew Colvin a career cop on terror beat

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Peter Timmins
Peter Timmins
7 years ago

The pushback has launched successfully with the government convinced by someone somewhere in the system that the way to ‘ease the burden on FOI applicants’ is to abolish the office of the information commissioner. Irony of irony, the bill was introduced in the House on Thursday by Scott Morrison, minister for ‘tone at the top’ when it comes to transparency.

Allan Hawke concluded in a review undertaken in 2012-13 that the establishment of the OAIC “has been a very valuable and positive development in oversight and promotion of the FOI Act.” There were plenty of other options to fix problems at the OAIC ( resources, powers for example) rather than removing from the scene the independent monitor of FOI performance and leader of the ever so slow shift towards a pro disclosure culture.

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