The Northern Territory government has been advised to get its public sector anti-corruption commission off the shelf by replicating the South Australian system, and effectively outsource the commissioner from its southern neighbour.
Nine months after the NT legislative assembly resolved to establish such a body, highly experienced jurist Brian Martin came back with 52 recommendations on how it should be designed to match the SA ICAC, which has the most limited powers of Australia’s independent anti-corruption bodies.
It should also be run by the South Australian independent commissioner against corruption Bruce Lander (pictured) for the first two years on a part-time basis, argues Martin, who has sat on three supreme courts, served as Commonwealth director of public prosecutions, and was a senior council assisting the 1990 ‘WA Inc’ Royal Commission that uncovered widespread government corruption.
Lander has about three and a half years left on his tenure, and would keep his current job if the proposal was accepted. He is on board with the idea, as long the SA government approves. Martin reports SA attorney-general and deputy premier John Rau is “not averse” to the idea.
The proposal is that NT would effectively outsource Lander’s time from SA so it wouldn’t need to pay him a salary or any of the other costs of hiring its own commissioner. That could save around half a million dollars a year, based on the going rate for high-level judges. After two years he would make recommendations on what comes next.
The anti star chamber
Copying and pasting the SA model into NT would mean little risk of trial by media for people whose names come up in investigations of corruption, as the details would remain hidden from the public unless and until criminal charges resulted.
Discussions of public sector integrity safeguards always divide on the question of how to uphold the rights of the accused, at the same time as giving an independent body sufficient powers to uncover the furtive improper activities that threaten to infect public sector business everywhere.
The SA ICAC sits at the opposite end of the spectrum to the NSW ICAC, which has been described as akin to a permanent Royal Commission. Lander sees his operation more like a specialist investigation bureau similar to the Australian Crime Commission.
Critics would say the NSW model creates a star chamber that undermines the rule of law, as NSW ICAC’s role goes beyond finding evidence that could lead to criminal prosecution and it makes very public accusations. Its supporters, on the other hand, see the SA model as too limited and secretive.
Only matters of potential criminal corruption and incidental offences would be investigated by Martin’s proposed NT anti-corruption commission. Other actions that might constitute maladministration or misconduct in public administration would be referred to the relevant agency to investigate and report back to the commissioner.
Like in SA, complaints and reports would go through a new Office of Public Integrity, which would be created by renaming the existing Office of Public Interest Disclosures and bolting it on to the new anti-corruption commission under Martin’s recommendations.
NT’s close-knit sector its own challenge
Appointing Lander to do the job part-time would also ensure actual and perceived independence from “the influence of familial and personal connections that often arise in the Territory” — a serious concern up north, according to Martin. And nobody else can lay claim to his unique experience as the foundation commissioner of the relatively new SA scheme:
“‘Getting it right’ from the outset is of critical importance and the experience of Mr Lander with respect to the commencement and ongoing operations of a structure in South Australia would be of great benefit.”
The fact that Lander wouldn’t have much time to devote to the NT role is not lost on Martin. He suggests Lander’s limited availability would not be a problem, as long as there’s a good chief executive, and the commissioner has the necessary powers to delegate and “co-opt personnel” as required.
He identifies a “real risk” that after an initial burst of activity, there would not be enough work to keep a full-time commissioner busy.
Complicating Martin’s suggestion that NT import the SA framework is the fact that some aspects of it may change in the near future, based on Lander’s 2014 review of public sector integrity legislation, which delivered 29 recommendations. The government will shortly introduce three new bills in response to the review.
Among them is a call to roll back a blanket restriction on putting details of the matters that come to his desk for “assessment, investigation or referral” in his reports to parliament, and hence the public. Lander explained in last year’s annual report:
“I think it is important that I be able to bring serious matters to Parliament’s attention and ultimately to the public’s attention. At present I find the inability to make such reports to Parliament under the ICAC Act somewhat frustrating.”
Lander can compel witnesses and suspects to give evidence in secret hearings but, as of July 2015, had only found it useful to do so on 10 occasions. He does not believe he should be investigating criminal corruption in public, and reported to parliament that “more is gained by the exercise of other powers” like covert investigations.
However, the commissioner explained in his 2014 legislative review, there is a lot of information he would have reported to parliament and the South Australian public if he was allowed, like the names of agencies where he has found evidence of systemic maladministration and made recommendations to address it.
Relaxing the secrecy provisions in the way Lander wants would not increase the risk of reputational harm to individuals who are yet to face criminal charges in court, the commissioner argues in his annual report.
He also believes he should be able to hold public hearings about misconduct and maladministration — the less serious non-criminal matters — but told a parliamentary committee they could avoid turning into “show trials” and would give all parties the opportunity to present their case.