Legal scholars: federal anti-corruption watchdog would need a short leash

By Stephen Easton

Thursday March 23, 2017

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The question of whether the Commonwealth needs a new anti-corruption agency is beginning to take a back seat to the far more interesting discussion about what one should look like.

A new academic paper from a national research project supported by three state integrity agencies, launched last Friday at the National Integrity conference, adds substantially to that conversation.

The discussion paper delves into key issues of institutional design and suggests the hypothetical watchdog often referred to as a federal ICAC would need big teeth — and to be kept on a short leash in a backyard with high fences.

“There’s no greater impetus for [reform] than being shamed in public.”

Public hearings are always the most contentious issue. Most legal scholars and eminent jurists — many of whom were at the conference — agree such investigations or at least their results should be open to public view, unlike in South Australia’s model. But there must be safeguards to protect the rights and reputations of people who give evidence or face corruption allegations.

The paper’s primary authors, University of New South Wales law professor Gabrielle Appleby and post-doctoral researcher Grant Hoole, think a national integrity commission should mostly hold closed hearings, but have wide powers to report its findings. The lack of this ability in SA is “hugely problematic” in their view.

They suggest a so-called federal ICAC should only have the power to hold public hearings in scandalous cases involving “both serious and systemic corruption” and only when the commission also believes a “crisis of public confidence in government” is unfolding as a result.

Differing views

Griffith University public policy and law professor AJ Brown, who leads the larger research project that produced the paper and jointly hosted the conference as a member of the Transparency International Australia board, pointed out that the proposed model would require debates about what constitutes a “crisis” of public confidence.

Brown said corruption investigators need to generate at least enough publicity to answer the main question citizens ask when a scandal hits government: “How was this allowed to happen?”

His co-host, TIA chair Anthony Whealy, said public hearings also coaxed new witnesses out of the woodwork. “And there are examples where that has made a considerable difference over the 20 years that ICAC has existed in New South Wales, and where information that came forward, often late in the piece, from somebody who’d been alerted to the hearing by the media … became critical evidence,” said the former NSW ICAC deputy commissioner.

Queensland Crime and Corruption Commission chair Alan MacSporran said “public hearings have a huge impact on deterring corruption in the public sector” and catalysing internal reforms, referring to the “miraculous result” of crooked public servants in the Victorian Department of Education and Training being exposed publicly.

“As we’ve seen in the [Eddie] Obeid case, those with long pockets use litigation to frustrate the system.”

In MacSporran’s view, “there’s no greater impetus for [reform] than being shamed in public” and while he accepts there needs to be constraints, he wouldn’t go as far as Appleby and Hoole suggest.

The researchers believe public reports could accomplish much of the same ends, while public hearings that show people “being examined in what looks like a court-like procedure” on the television news should only be used sparingly.

“Even though it might be addressing a systemic issue, what the public are seeing is an individual in that box, being questioned,” Appleby said.

The paper explains that anti-corruption bodies have strong coercive questioning powers as they primarily play a fact-finding role, and leave it to the courts to determine guilt or innocence in cases of individual criminality.

Setting the guardrails

The two researchers note the commission itself would decide if a public hearing is warranted in their proposed model, but it would be constrained in how it does so by a “thick” legislative statement leaving little room for interpretation. They also drafted an example:

“The object of this Act is to suppress corruption and foster public confidence in the integrity of the Commonwealth government by empowering an independent commission with authority to investigate Commonwealth government activities, including through consideration of public complaints, with the goal of identifying and reporting instances of serious or systemic corruption.”

A “refined and detailed” statement “provides a stronger anchor by which future questions of process and jurisdiction and exercise of power will be resolved by officials” in Appleby’s view. It could temper the federal ICAC’s “capacity to exercise strong investigative powers with potentially harsh adverse effects on people and organisations” and act as “a safeguard against it evolving in a way that undermines public, social and political legitimacy by provoking conflict with other institutions, incoherency or abuses of power.”

The paper also suggests a new commission should only be able to investigate matters when it has “a reasonable suspicion that they involve serious or systemic misconduct” much like a recent amendment to the Victorian model. But the new Law Enforcement Conduct Commissioner in NSW, Michael Adams, thinks this could open the floodgates to litigation.

“The point is that it goes to jurisdiction and undoubtedly would then expose the commission to litigation at the outset, in which it would have to show the basis for its reasonable suspicion — matters which they might well wish to remain confidential until the investigation proceeds,” said the former Supreme Court judge.

“I’m not sure it’s wise to have a jurisdictional limit at the outset which is capable of supervision by the courts in that way. It invites litigation and as we’ve seen in the [Eddie] Obeid case, those with long pockets use litigation to frustrate the system. I think the test is not a wise one.”

Hoole said they had put their own preconceptions aside and relied on “a survey of existing strengths and weaknesses in the federal integrity landscape” to start from first principles, going back to the old discipline of legal process theory to consider how “integrity of purpose” could be built into such an agency and maintained over the long term.

Appleby and Hoole list three other essential features that go with their proposed restrictions on public hearings. In favour of openness, they deploy arguments that have so far been unsuccessful for SA anti-corruption commissioner Bruce Lander:

“First, the commission must be able to publicly report the findings that result from any hearing, including findings of serious and systemic corruption and their relevant factual foundations.

“… It is difficult to conceive of how a commission can broker confidence in government if the government itself exercises control over whether the commission’s findings can be released. The incoherence of this approach – allowing the government to be the gatekeeper of damaging findings about its own conduct, reached by an independent commission – is patent.”

Secondly, they say procedural fairness and natural justice must be paramount, with commissioners held to “stringent standards of impartiality” and witnesses “afforded an opportunity of notice and reply to potential adverse findings that may be made against them”.

Third, the commission would need “follow-up powers” also like those exist in the Victorian model, to go back and check if its reports and recommendations have been acted on.

Appleby noted the common view that corruption investigations must be open so the community can see there are consequences for corrupt public officials and has some confidence in the overall system. “But the public work of a new commission may also impact on public confidence negatively, at least in the short term, through the very act of highlighting misconduct,” she added.

Gaps in the system and a lack of coherence

Appleby said there were clear gaps and a “lack of coherence in the federal integrity landscape” that could be addressed by a new anti-corruption commission, or some other reform.

“The first clear gap in current institutional capacity is the ability to scrutinise the conduct of ministers and parliamentarians,” she said. “Only the parliamentary expenses authority — newly created — has the express mandate … but that mandate is extremely limited to the narrow issue of members’ expenses.”

She said there was also “a limited ability to investigate government agencies through the convening of hearings, whether in public or in private” in the Commonwealth system, noting the Ombudsman doesn’t do this, and the narrow jurisdiction of the Australian Commission for Law Enforcement Integrity.

“The inter-relationship between the existing institutions we think is at present, complex and confusing,” Appleby added. “It is not immediately obviously to a politician or a public servant wishing to report serious corruption concern to know where to go to do that.”

The issue of a federal ICAC is again the subject of a Senate inquiry and its chair, Jacinta Collins, also suspects most parliamentarians do not understand much about the various facets of the national integrity system, including their own role in it.

Perhaps they should be surveyed, Collins suggested, “because, if constitutionally their role is to advocate for their constituents, and they don’t understand what the Ombudsman does, they don’t understand the auditing process, they don’t understand — look, there’s such a broad range of areas that I could reflect here — then you’re missing an important part of the system.”

“And educating not only ourselves, our constituents [and] the general community about our systems, our frameworks to deliver integrity is one element, but having a framework that makes sense and is easily digestible is another,” she added in a speech as delegates met for evening drinks.

Collins, who has been in parliament since 1995, admitted she had a “limited understanding” of the full federal system until joining the Public Accounts and Audit committee three years ago and suggested a new integrity body could at least play a co-ordinating and awareness-raising role.

“If we can use a national body, framework — whatever you want to call it — to help all of us make sense of our integrity framework, even that in itself would be a very good thing,” said the Opposition Senator.

The politics of the process, she said, involved working out measures that would survive future changes of government and said the Victorian experience with the Independent Broad-based Anti-corruption Commission was instructive in that regard.

Brown’s goal for the wider research project — to find ways to strengthen the interlocking nationwide framework of agencies and institutions, both national and at state level, so they work together coherently, “not quick fixes or silver bullet solutions or single institutions, whether they might be anti-corruption commissions or anything else” — also goes the conference itself.

Hosted by TIA and Brown’s research group, with the theme of “building the public/private alliance”, it brought together a group of legal experts, academics and business people with public servants and parliamentarians — groups who have been working together closely in recent years as public trust in both government and big business has declined.

Crime crosses state and international borders and, as several speakers including Collins and IBAC chair Stephen O’Bryan pointed out, public and private sector corruption are often two sides of the same coin.

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Glenn Kelly
Glenn Kelly
5 years ago

Good article. I believe there is a very good reason the article continually refers to a “federal” ICAC . It is because “NSW” ICAC is the one model that has a proven track record and shows no fear or favour. When you look at the likes of the WA CCC, (which has been corrupted (no inference intended) by the interference of the last parliament to withdraw the CCC’s ability to investigate state elected officials), the NSW ICAC model shines. What point is their wasting public money on a toothless tiger if it cannot pursue ALL corruption.
ICA (NSW) is the oldest and the best. Why reinvent the wheel, federal authorities should choose, and run with the best. Anything less would overlook the fact that the rise of this discussion was generally given impetus by the action of some elected federal officials.

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