The future of Australian federal anti-corruption policy
Our budget coverage continues! Ahead of the ‘National Integrity Forum’ on 8 April at Parliament House, Dia J Andrews (@DiaJAndrews1) of the Public Service Research Group, UNSW Canberra takes a look at the state of play in the federal anti-corruption space in the lead-up to the 2019 Federal Election. What have each of the major parties promised, and what do the experts recommend?
The past five years has seen a shift in public debate concerning corruption in federal Australian politics and the public sector. Ongoing advocacy by engaged civil society groups as well as growing public resentment stirred by numerous high profile expenses scandals involving senior cabinet ministers has put federal corruption firmly on the public agenda. The past six months have been especially important: multiple political crises in the current Coalition government have created opportunities for the opposition and the cross-bench to push for a federal anti-corruption agency. Ahead of the 2019 federal election, the future of federal anti-corruption policy is at a crossroads. So what exactly is at stake and what are the problems that anti-corruption advocates argue the 46th Parliament needs to address?
The current arrangements
Presently, Australia takes a ‘multi-agency approach’ to federal anti-corruption and integrity issues. In this approach, Australia has a cluster of federal institutions, such as the Australian Public Service Commission, Australian Federal Police, and Australian Commission for Law Enforcement Integrity, that monitor and investigate different kinds of corruption in their respective areas of responsibility. Anti-corruption advocates argue, however, that (with the exception of AFP investigations concerning criminal misconduct) these arrangements are flawed because none of these agencies are expressly empowered to oversee and review the activities of federal Parliamentarians.
Currently, Australian Parliamentarians are subject to a range of conduct codes, but these do not include “legally enforceable standards”, explicit formal investigatory procedures, or clear sanctioning regimes. Bronwyn Bishop’s 2015 expenses scandal demonstrated the weaknesses of this approach when it was revealed in 2017 that the former Speaker had cut short her co-operation with the Department of Finance’s review into her travel entitlements. With no powers to compel the former Speaker to co-operate or to sanction her for not providing adequate information, the Department of Finance concluded the review. Anti-corruption advocates argue we need to address accountability gaps such as this.
Where do the Coalition and Labor stand on federal anti-corruption?
Going into the 2019 Federal election, both major parties have outlined plans to shake up Australia’s multi-agency approach. But what do the Coalition’s and Labor’s policies actually look like?
In mid-December 2018 Prime Minister Scott Morrison and Attorney General Christian Porter, under pressure from the opposition and the crossbench, announced that the Coalition would establish the Commonwealth Integrity Commission (CIC).
Under the Coalition’s plan, the CIC would be created by converting the Australian Commission for Law Enforcement Integrity into a federal anti-corruption agency, responsible for educating, preventing and investigating corruption. It would have two divisions: a) law enforcement, and b) the public sector (which would include oversight of “parliamentarians and their staff”). The law enforcement division would be empowered to compel and seize evidence, convene private and public hearings, and conduct arrests. The public sector division would be empowered to compel the production of documents and search premises, but it would not be able to hold public hearings or “make findings of corruption, criminal conduct or misconduct at large”. However, neither of the two divisions would “investigate direct complaints about Ministers, Members of Parliament or their staff received from the public”. The Attorney General’s department invited public submissions on the proposed CIC, and as of the 3rd of April, the Coalition’s 2019 budget has committed $104 million over the next four years.
In January this year opposition leader Bill Shorten outlined Labor’s policy to establish a federal anti-corruption agency, the National Integrity Commission (NIC), within the first 12 months of government. Under this plan, the NIC would “operate as a standing Royal Commission into serious and systemic corruption” and would have commensurate investigative powers. The NIC would be able therefore to convene private as well as public hearings, but would “only be empowered to makes findings of fact”; any findings concerning criminal conduct would need to be referred to either the AFP or the Commonwealth Department of Public Prosecutions. Further, a Parliamentary Joint Standing Committee would be established to oversee the NIC, and the NIC would report to it annually. To date, it is not clear how much the Labor Party is prepared to commit to funding the NIC, however Transparency International Australia (TIA) has reported that Labor would “allocate $15 million per year”.
What do we really need?
Whether the Coalition or Labor wins the upcoming election, it seems that significant reform in the federal anti-corruption space is just around the corner. However, because such reform is likely to set the agenda for federal anti-corruption efforts for years (if not decades) to come, getting such reform right is crucial to the future integrity of the Australian parliamentary system. So, what do anti-corruption advocates and experts think Australia needs going forward?
Advocates and experts have outlined three areas of concern:
1. Effective and enforceable oversight of Members of Parliament, their staff, and lobbyists by a single overarching agency with the power to hold public hearings.
2. Adequate annual funding and resourcing so the agency can properly fulfill its educational, preventative, and investigative functions.
3. Additional legislative measures to address weaknesses in the system that presently permit parliamentary members and their staff to become lobbyists and consultants for industries that they have previously been responsible for monitoring and regulating.
Anti-corruption experts and advocates have spoken at length on the gaps in the current multi-agency approach – where public servants and law enforcement officials are subject to one set of legally enforceable requirements, while Parliamentary members and their staff are subject to a different set of legally unenforceable standards. These double standards have meant that the investigation and sanctioning of Members of Parliament for potentially corrupt activities is largely subject to the unpredictable confluences of partisan politics and the national news cycle.
To mitigate this unpredictability, advocates such as former NSW ICAC commissioner David Ipp have argued that a federal anti-corruption agency must have the power to hold public hearings, to both “gain the trust of the people” and to encourage people with information on corrupt activities to come forward and co-operate with authorities.
Transparency International Australia has also highlighted the importance of appropriate resourcing and funding for the new agency. In their submission regarding the Coalition’s CIC, they highlighted that inadequate funding has been a “barrier” for agencies tasked with undertaking corruption education, prevention, and investigation activities. TIA further noted that both the Coalition and Labor’s present commitments fall far short of the $93.7 million per year that TIA estimates such an agency will require.
Finally, advocates have also stressed that any reform package will be incomplete if it doesn’t address the revolving door between public officers and the private sector. Dr Adam Lucas at the University of Wollongong documented this problem regarding the fossil fuel and mining industries, and found that such “influence peddling” is a bipartisan problem. As TIA has argued, this is not simply an issue of quid-pro-quo corruption between individual public servants and industry groups. Rather, current arrangements expose the Australian government and political parties to the “risk of political and policy capture”.
It’s clear that whether we get Coalition or Labor for our next government, there is significant work ahead for the 46th Parliament to strengthen Australia’s federal anti-corruption policies. It remains to be seen whether or not the major parties are truly committed to cleaning up the messes created by their own members in either the short or long term. However, the year ahead will surely prove instructive in this regard.