National integrity commission: got a better idea to strengthen public trust?

By Stephen Easton

February 1, 2018

If establishing a comprehensive federal anti-corruption watchdog leads to stronger public confidence in the Australian government, as supporters contest, surely an estimated cost of just under $60 million over four years would be a small price to pay.

This is the thrust of the main argument in favour of the idea and, according to opposition leader Bill Shorten, the key reason the Labor Party has decided to get behind the snowballing campaign to establish such a body. Critics claim it would infringe on the rights of public officials just doing their jobs.

Spearheaded by groups like Transparency International Australia and The Australia Institute, the push has attracted a large group of eminent supporters, mainly from the legal profession.

It didn’t actually take much to convince Shorten to come around, according to the ex-president of the Queensland Court of Appeal, Margaret McMurdo, who helped the progressive think-tank come up with its position on the matter.

“When you’ve got a good idea, it’s not hard to sell it,” McMurdo said on ABC radio yesterday.

The general idea also has significant public support, according to various polls, suggesting the proposed integrity commission could indeed help arrest the decline of public trust in government, if not give it a boost.

The only concrete proposal on the table

There’s no doubt that public trust in government has been in decline in recent years and the suspicion that public sector corruption is occurring in the shadows is clearly growing as well. But these trends are also part of a complex, multi-factorial global phenomenon – a broader erosion of trust and the concept of truth itself – which is bigger than anything that happens in Canberra.

A national anti-corruption commission should not be expected to end this crisis of faith — that would be an absurdly unrealistic expectation — but it could certainly help, and that is surely a worthy cause. It is also the only concrete proposal on the table to seriously address the loss of public trust in government.

Deputy Prime Minister Barnaby Joyce denies there is an issue. “I don’t think there is a real sense in Australia of a concern with the political system,” he said on the weekend, when asked by Sky News if he supported a federal anti-corruption body.

Joyce claimed that Senate inquiries were sufficient to deal with any “issues that are a concern within the political frame” and bizarrely suggested a new watchdog might undermine ministerial powers, putting public servants in charge.

He claimed to fear a situation where “all that happens is departments govern, because any time you make a decision that’s different to your department, you have the potential to end up in front of ICAC” — but that has never eventuated in any other jurisdiction. Joyce appears wary of any increased transparency, and in that respect he is not alone among politicians or public servants.

Following Shorten’s announcement, the DPM backpedalled somewhat, and joined his colleagues in appearing open minded, giving Malcolm Turnbull more room to manoeuvre.

If Shorten’s integrity agency is established but after several years its investigations only confirm there is very little serious or systemic corruption at federal level, as some detractors have suggested, that would hardly be a bad thing. Arguably, having the common assertion of a clean Commonwealth independently confirmed would be money well spent on helping strengthen public faith in public institutions.

Supporters like McMurdo very much doubt that scenario would eventuate, and have repeatedly pointed out that when state governments have gone down this path, the watchdog has found plenty to sink its teeth into.

Not entirely new functions either

“The recent Senate inquiry has shown that Australia’s current federal anti-corruption framework is uncoordinated, inconsistent and confusing,” argues a joint statement from several shadow ministers.

“While many agencies have some partial responsibilities in this area, their work is haphazard and overlapping.”

This is a fair point, and Shorten said some of these existing agencies — the Australian Commission for Law Enforcement Integrity, for example — could be subsumed into the proposed commission, providing an opportunity to build on what is already in place.

“I think a national integrity commission, as we design it, can look at where we can include any of those functions currently performed by other bodies,” he said. The written proposal also suggests it might take over some of the Australian Public Service Commission’s role:

“The Commission will not just investigate suspected matters of serious corruption, but will also play an educative role, to help prevent serious corruption problems from developing in the first place.”

The new Independent Parliamentary Expenses Authority should probably remain in place, in Shorten’s view, and he agrees that the rules around political donations still need to be reformed in any case.

Principles, not prescriptions

Labor sensibly avoids detailed prescriptions in favour of seven design principles:

  1. The Commission will operate as an independent statutory body, with sufficient resources to ensure it is able to carry out its functions regardless of the government of the day.
  2. The Commission would be constituted by one Commissioner and two Deputy Commissioners, each of whom would serve for a single, fixed, five-year term.
  3. The Commission will have sufficiently broad jurisdiction and freedom of action to operate as a standing Royal Commission into serious and systemic corruption by Commonwealth parliamentarians or their staff, public servants, statutory office holders, the Commonwealth judiciary and the Governor-General.
  4. The Commission will be granted the investigative powers of a Royal Commission, including search and surveillance powers, the power to compel witnesses and subpoena documents and carry out its own investigations, with warrant oversight by the Federal Court.
  5. While the presumption will be that hearings will be held in private, the Commission will have discretion to hold hearings in public where it determines it is in the public interest to do so. Labor will continue to consult on the appropriate threshold for such hearings.
  6. The Commission will only be empowered to make findings of fact. Any findings that could constitute criminal conduct would be referred to the AFP or Commonwealth Department of Public Prosecutions.
  7. A Joint Standing Committee of the Parliament will be established to oversee the Commission and will be empowered to require the Commission to provide information about its work. That Committee will be responsible for appointing the Commissioners. The Commission will also report to Parliament on its performance annually.

Choosing a model will be the real battle

The opposition is also sensibly avoiding calling it a federal ICAC or IBAC, which would immediately link the proposal to one of these existing state-based institutions, each of which has been developed through a similar process of debating exactly where the limits on its powers need be.

The Victorian watchdog recently passed five years in operation and released a special report on the journey, which is a tale of compromise between those who said it would be weak and ineffectual, and those who said it would be too powerful and infringe on the rights of individuals called to answer its questions.

Malcolm Turnbull has said he prefers the IBAC legislation to the equivalent in NSW, while former judge Stephen Charles, a prominent voice in the campaign for a federal watchdog who contributed to the design of the Victorian agency, warns it has “a narrow jurisdiction, weak investigative powers and a limited ability to use them”.

Essentially, what Labor has proposed is just a basic outline of what has become the standard model in Australia, to be filled in with details following a similar debate.

Opponents fear it’ll create a ‘star chamber’

This is not good enough for one of NSW watchdog’s fiercest critics, News Corp journalist Chris Merritt, who has long argued that ICAC’s strong powers allow it to unfairly ruin reputations through its high-profile public inquiries, with no effective avenue for redress or appeal once the damage is done.

He demands that Shorten provide more details, arguing somewhat dramatically: “Unless he provides some quick answers, the community is en­titled to assume that a federal Labor government would create a NSW-style star chamber where the rules of evidence do not apply, where the merits of its findings cannot be tested on appeal and where fundamental principles such as the presumption of innocence are abandoned.”

Merritt notes there are some 26 entities that play some role in Commonwealth public sector integrity, according to the Attorney-General’s Department’s submission to the Senate inquiry (PDF here), 10 of which have a “key role” (and about half of which are not independent of the government).

Merritt asserts that all 26 bodies were created in a way that respects human rights, the rule of law and the normal justice system, unlike the NSW ICAC. He argues it is therefore impossible to create a new integrity agency that would also respect individual rights, without it duplicating the roles of other agencies and being a waste of money. So either it’s a waste of money, or a star chamber.

On the other hand, one of The Australia Institute’s efforts to promote the idea involved clearly setting out where the gaps are in the current integrity framework in a discussion paper last August:

“No agency has the power to investigate corrupt conduct as defined by our state based commissions. No agency can investigate misconduct of MPs, ministers or the judiciary. The agencies that do have strong investigative powers, such as the federal police, can only use them when investigating criminal charges. No agency holds regular public hearings, meaning that corruption and misconduct is not properly exposed to the public.”

Although he would undoubtedly face internal opposition to the idea, there is significant pressure on Turnbull to agree. The APS would have to adapt to a new reality where there is more chance of dirty laundry being aired in public, but with trust in government falling, would that be such a bad thing?

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