Time's Up: Why Australia Needs A National Integrity Commission

TIME'S UP: WHY AUSTRALIA NEEDS A NATIONAL INTEGRITY COMMISSION
 
NATIONAL PRESS CLUB, CANBERRA

MARK DREYFUS
SHADOW ATTORNEY-GENERAL
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
 


TIME'S UP: WHY AUSTRALIA NEEDS A NATIONAL INTEGRITY COMMISSION
 
NATIONAL PRESS CLUB, CANBERRA
 
WEDNESDAY, 11 SEPTEMBER 2019


I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders, past, present and emerging.
 
Thank you to the National Press Club for the invitation to speak today.  Although I have now been in the Parliament for almost 12 years, and I have got to know many of the journalists of the Press Gallery quite well over those years, this is my first opportunity to address you at this great institution.
 
While we rightly acknowledge the importance of the Parliament to our democracy, the Fourth Estate is very rarely accorded recognition for its important role. And while this is not the subject of my speech, today is a good opportunity to state unequivocally that the role of a vibrant and independent media should be recognised by all members of Parliament, and particularly by all Australian governments, as an essential part of our democracy. 
 
It is a matter of great regret and growing concern to me that over recent months, the Government of this country has shown in both its words and its actions that it does not recognise the importance of the freedom of the press.
 
I will resist the urge to say more about that topic now and instead move to the subject of this address, Time’s Up – Why Australia Needs a National Integrity Commission.
 
I will start by saying that if Labor had won in May, there would be now an exposure draft of a bill that would establish for the first time a national integrity commission – a national integrity commission worthy of its name and role, established with the independence, powers, and resources of a standing royal commission into corruption in the federal public sphere. Certainly, that was one of the matters I had been intending to prioritise had we won the election held earlier this year.
 
Labor has been clear about the need for a national integrity commission since Bill Shorten announced Labor’s commitment to establish such a body in a speech he gave here in January 2018.  In that speech, Bill rightly said that while we were not proposing to draft the legislation that would establish that body from Opposition, we had been consulting extensively with legal and integrity experts, and examining the pros and cons of the various state models.  And from that work we had arrived at seven basic design principles for the proposed body which we were committed to implementing.
 
We have invited the Liberal Government to work with us on this initiative because we believe that corruption is something that harms our nation.  And we know that corruption is something that can occur in any government, in any part of the federal bureaucracy, and in any political party.  All the states now have anti-corruption bodies, and we have seen that no matter how carefully the political parties vet their candidates, no matter what steps are taken to ensure integrity in government, there is always a danger of corrupt conduct occurring.
 
But we never did hear back from the Liberal Government regarding our offer to work with them, in the national interest, to establish a national integrity commission. Or at least, not until December last year, 10 months after we first wrote to them, and after numerous statements from the Attorney-General and the Prime Minister during that period that such a body was not required.  Indeed, Mr Morrison described it as a ‘fringe issue’ late last year. 
 
But on 13 December we did finally hear something more concrete from the Government.  It was not an offer of cooperation on the project, but rather a press conference at which they announced that the Attorney-General and the Prime Minister had finally discovered that some sort of national integrity commission was a good idea.  However, it was immediately apparent that it was Liberal Party polling that was driving the announcement and not a real commitment to a national integrity commission. I will say a little more about that substantive content of that proposal, and my concerns with it, shortly.

The proof of the government’s lack of commitment to integrity and hence, the title of my speech, ‘Time’s Up!’ is that more than 20 months after Labor’s announcement that we would establish a national integrity commission, and more than 8 months after the Liberal Government announced the same commitment, we still don’t have from the Government so much as an exposure draft for legislation to establish such a body. 
 
Indeed, legislation to establish such a body is not even on the Government’s published legislative plan for the rest of this year.  And this is despite the fact that at the time of the December press conference, the Government claimed to have been working on legislation since January 2018.  It seems Mr Morrison’s statement in November that ensuring integrity in government is a ‘fringe issue’ continues to be an accurate statement of his view on this matter.
 
You have to ask just how serious this Government is about a national integrity commission when 10 months after announcing the need for one and putting out a discussion paper, there is no proposal before the Parliament, and no sign it’s even on the Government’s agenda for the rest of this year.
 
We have a Government that is obsessed with a bill about unions that they have called “ensuring integrity” .But the same Government adamantly refuses to ensure its own integrity can be put under scrutiny.
 
I’m here today to announce that Federal Labor led by Anthony Albanese is committed to tackling corruption and restoring integrity and trust in the federal government and we are committed to the establishment of a national integrity commission
 
In discussing why a national integrity commission is needed, I will briefly address three key matters.
 
The first is Labor’s general approach to this matter, and why we came to the view that a national integrity commission is needed.
 
Second, I will touch on some illustrations of the kind of matters that might have been dealt with, or better yet, deterred from ever occurring, by a national integrity commission.
 
Finally, I will briefly outline my concerns about the model put forward by the Morrison Government last year, and the reasons why we in Labor will be working to hold the Government to account on its commitment to establish a national integrity commission. 
 
We will be working to ensure, in a constructive manner I hope, that the national integrity commission established by this 46th Parliament is one that is worthy of its name and vital role. And by that I mean we will be pressing for the establishment of a national integrity commission that has all the powers, independence and resources of a standing royal commission into corruption in the federal sphere. 
 
 
Labor’s record in government
 
There has been a great deal in the news recently about the conduct of individuals in the NSW Labor Party in relation to election donations, aired at the NSW Independent Commission Against Corruption.  Other matters at ICAC over recent years have resulted in the resignation of some eleven Liberal Party MPs, and just this morning we read that another Liberal minister has serious questions to answer. Without prejudging any possible findings of the current investigation, let me make an unequivocal statement, and that is that Labor stands for integrity, accountability and transparency in government.  And that we do not tolerate misconduct, whether in government, business or unions.  In keeping with this guiding principle we have always worked to foster a culture of integrity in government.  And in Opposition. 
 
And if misconduct does occur, action must be taken.  Not just action against the individual or individuals involved, but serious action to ensure that such conduct never occurs again.  
 
The last time we were in government at a federal level, Labor supported significant improvements to Commonwealth integrity policies to make it easier to prevent, detect and respond to corruption.  Labor signed Australia up to the Open Government Partnership, an international program launched in 2011 that provides a framework for national governments to make their public sectors more open, accountable, and responsive to citizens and civil society. 
 
As Attorney-General in 2013, I introduced the Public Interest Disclosure Act, which at last provided protections for whistleblowers in many parts of the federal public service. That legislation protects disclosures of misconduct which might otherwise breach the law, and provides legal remedies for whistleblowers if they suffer reprisals for making such disclosures.  
 
Suggestions which have been about improving these protections, and possibly extending them to the public sector generally, have not been acted on by this Government over six years in office.
 
In government, Labor also introduced sweeping reforms to strengthen Commonwealth Freedom of Information laws.  In contrast, the Liberal Government’s record on FOI has been truly reprehensible. And it only appears to be getting worse each year. I could say a great deal about this subject, but I expect that many of you, who as journalists often have to rely on FOI laws to find out what the Government is up to, don’t need me to explain to you just how difficult FOI processes have become.
 
Finally, Labor took a National Anti-Corruption Plan to the 2013 election, a plan which, to my great disappointment, after six years and three Prime Ministers, this Liberal Government has little interest in progressing.
 
 
The existing federal integrity framework
 
A plethora of scandals over recent years have convinced Labor, and we hope now the Liberal Party as well, that however well the existing Commonwealth integrity framework may have operated in the past, something far more powerful is now needed. 
 
Currently, Australia’s anti-corruption framework includes a range of agencies with differing responsibilities and powers, some of them quite specialised.   These bodies include:

  • The Australian Criminal Intelligence Commission, created by this Government in what I consider to be the very unwise merger of the Australian Institute of Criminology with the Australian Crime Commission. The ACIC, like the ACC before it, has many of the powers of a standing Royal Commission, albeit that it works in a specific criminal jurisdiction and does not operate with the same public profile or resources;
  • The Australian Electoral Commission, which is meant to enforce compliance with electoral and campaign finance laws;
  • The Australian Federal Police, who are empowered to investigate offences against Federal law;
  • The Australian Commission for Law Enforcement Integrity (ACLEI), which can investigate corrupt conduct in Australian Government agencies that possess law enforcement functions.  It is to ACLEI that the Government has referred the recent allegations regarding Crown Casino.
  • The Commonwealth Ombudsman, who has the power to investigate the administrative actions of Federal Government agencies;
  • The Inspectors-General of Intelligence and Security, Tax and the Australian Defence Force;
  • The Auditor-General, who has the power to scrutinise public sector operations;
  • AUSTRAC, which has played a very important role in dealing with transnational crime, and played a key  role in uncovering an unprecedented money laundering scandal at the Commonwealth Bank;
  • The Independent Parliamentary Expenses Authority (IPEA), responsible for travel and other expenditure by MPs and their staff;
  • The Australian Public Service Commissioner.

 
That’s quite a list. And a great deal could be said about the important work of each of those bodies, and what each contributes to the integrity of our federal system.
 
Another integrity measure within the federal political sphere is the ministerial code of conduct.  Bob Ingersoll, a 19th century jurist said of Abraham Lincoln that “Most people can bear adversity. But if you wish to know what a man really is, give him power. This is the supreme test.” And in our system of government, ministers are given enormous power. 
 
The Ministerial code of conduct is an executive rather than parliamentary accountability mechanism because it applies only to parliamentarians who are Ministers, and because it is administered by the Prime Minister alone.
 
I am not suggesting that a national integrity commission would be given jurisdiction to enforce the Ministerial code of conduct.  Rather, I am raising the fact that because the Ministerial code is a form of self-regulation, with both its content and enforcement at the whim of the executive government it ostensibly regulates, it is unlikely to do much to increase public confidence in the federal government. Indeed, its very nature may have the opposite effect.
 
One of the key problems that has come to light is that the list of formal integrity institutions that I’ve identified, as well as the less formal parliamentary and executive measures, including parliamentary processes such as Question Time and Senate Estimates hearings, do not make up a single coherent system.  Indeed, the existing arrangements are not so much a ‘system’ as a conglomerate outcome of ad hoc developments in administrative law, criminal law, and public sector management, overlapping with political processes.  This system has worked, but it has developed in an ad hoc way, and in an expanding jurisdiction. The problem is that there are gaps, some growing, that require a discreet body capable of detecting, investigating and stamping out corruption.
 
And as many scandals and much questionable conduct over recent years have shown us, despite the existence of the many Commonwealth agencies and parliamentary processes designed to ensure integrity, there are significant gaps between them. 
 
Some examples that spring to mind are the AWB oil for food scandal, the Securency bribery scandal, and in more recent times the Crown Casino allegations, Mr Dutton’s ministerial interventions for au pairs, the awarding of lucrative government contracts without open tender or transparent processes, including for example, a $423 million  contract to a company called Paladin and the $591 million contract awarded to a company called Canstruct ; water allocations in the Murray-Darling Basin, and former ministers accepting positions as lobbyists in apparent breach of the Ministerial code of conduct.  
 
It is long past time that the gaps in our system were addressed. It is long past time we stopped dealing with corruption and misconduct allegations in a piecemeal, ad hoc fashion where the government of the day gets to choose the terms of the inquiry, and even whether we have an inquiry at all. It’s long past time we acted to restore public confidence that serious allegations of corrupt conduct will be properly investigated. It’s long past time we had a truly independent, transparent and effective federal anti-corruption commission, vested with a general jurisdiction to investigate corruption across the public sector, Members of Parliament, Ministers and their staff, as well as any person who interferes with the proper exercise of public office.
 
Late last year, when we had still heard no indication from the Morrison Government that it had any interest in establishing an integrity commission, Professor AJ Brown and Cathy McGowan, the then Independent Member for Indi, commenced work on a Private Members Bill to establish such a body. To prepare such a bill is an immense amount of work, and to do so without the resources of a department was a huge undertaking.
 
The bill was never debated in the House, and was sent immediately to a Senate Committee for review when an almost identical bill was introduced into the Senate. It was this bill that forced the Government to take a position. With the Government’s majority precariously balancing on a single vote, and having learned the lesson of the Banking Royal Commission, which Mr Morrison had voted against 26 times before being forced into a humiliating reversal, Mr Morrison and his Attorney-General announced their own version of a national integrity commission, which they called a Commonwealth Integrity Commission in mid-December 2018.
 
Unfortunately, the Government’s CIC, as proposed in its discussion paper last December, is the integrity commission you design when you actually don’t want an integrity commission, and want to do everything you can to stop it, while pretending you support it.
 
I accept, and indeed, I made the point last term, that the detailed design work for the exact form of a national integrity commission is a job that can best be done from government.  One of the reasons for this is that no matter the quality of the legal advice that is provided about how such a body should be structured, there is a need to consult with the many existing federal integrity bodies on how they will interact with a new, overarching body, particularly when it comes to overlapping jurisdiction and investigations.
 
That is why Labor is intending to press the Government, or ideally to work with them, to ensure that a national integrity commission will be established as an independent  statutory body, with the powers of a royal commission, with the discretion to hold hearings in public where it determines it is in the public interest to do so.
 
When I say independent, I mean that it must have the power to initiate its own inquiries, and does not have to wait until it is told to investigate something by the Government or one of its agencies.
 
When I say all the powers of a Royal Commission, I mean the full suite of powers that Royal Commissions like the Fitzgerald Inquiry, the AWB Inquiry and the Banking Royal Commission needed in order to be able to carry out their nation-changing investigations.  The power to compel witnesses, to order the production of documents, to order telecommunications intercepts and other surveillance, to demand answers to questions of witnesses appearing before them. The Government’s proposal in December appears to be premised on the assertion that the CIC doesn’t need those powers, particularly the tier dealing with the Commonwealth public sector other than law enforcement, including MPs and their staff.  I don’t believe that assertion is correct.  The role of a national integrity commission is to detect, investigate and stamp out serious corruption in the federal government sphere, a role as vitally important and as difficult as that taken on by the corruption-busting royal commissions I have just mentioned, all of which the Australian public trusted and relied on.
 
 
Concerns with the current Government proposal
 
The Government’s model proposes a body with two wings – one wing is essentially the existing Australian Commission for Law Enforcement and Integrity, with a few new departments brought under its jurisdiction. The second wing is designed to cover politicians, their staff, and the Commonwealth public service.
 
The Government proposes vastly different powers for the two wings, which would be in effect two different bodies. The ACLEI wing would retain all its previous investigatory powers and the ability to hold public hearings – although notably it has not held a single public hearing since its foundation in 2006. The second wing, however, would be far more limited:

  • It cannot self-start inquiries or act on tip-offs from the public, as it must rely on referrals of allegations of serious or corrupt conduct from agency heads. How that will work in the case of politicians is unclear.
  • It cannot not hold public hearings, full stop.
  • It cannot make findings of corruption – instead it will simply determine whether any case is strong enough to refer to the CDPP.
  • It cannot investigate serious misconduct due to the threshold for investigation being set at a reasonable suspicion that the conduct in question constitutes a criminal offence.
  • It cannot have the power to seize evidence nor conduct surveillance – powers that have proved key to several cases in state-based anti-corruption systems.

 
As Geoffrey Watson, former counsel assisting the New South Wales ICAC and now director of the Centre for Public Integrity wrote in the Sydney Morning Herald last week:
In the lead-up to the recent federal election, Labor ran on a policy of introducing a powerful and independent national integrity commission.
 
The Coalition responded by providing its own model. The Coalition’s proposal was a joke. Toothless, spineless, and secretive, it would have no power to examine the activities of politicians or those close to them. Why should any honest politician fear such an agency?
 
As the Prime Minister might put it “how good is a national integrity commission that can’t investigate anything that embarrasses my government?”
 
In the real world, if politicians and their staff are seen to be somehow exempt from the integrity mechanisms that other parts of the Commonwealth, or their state counterparts are subject to, how will that help to restore trust in government and in politics at large? It doesn’t seem right to me and I don’t think it will seem right to you or to the vast majority of Australians.
 
As Peter Hartcher noted recently in the Sydney Morning Herald, Indonesia, a country sometimes maligned here because of perceptions about corruption, has a powerful independent anti-corruption agency with over 1000 public officials convicted of offences since it began operations in 2004. This includes 122 members of the national parliament.
 
And while Indonesia has moved from rock bottom in global corruption rankings to the global middle, over that same period Australia has slipped from seventh to 13th.
 
As Peter Hartcher writes:
Where Australia was ahead of Britain, Germany and Norway 15 years ago, it now ranks as dirtier than all three. On this trajectory, Indonesia will surpass Australia some time in the next 15 years as it cleanses itself while Australia's rot spreads.
 
Labor is keenly aware of the balance that must be struck between the desire to eliminate corruption from public life and natural justice for those who may be investigated. There are some well-publicised cases of individuals who feel their reputations have been unfairly damaged by appearances at state-based anti-corruption bodies. Some elements of the media have taken these cases and run with them in attempt to prove a case against anti-corruption bodies completely. I don’t see that is the lesson that is to be learned from those kinds of cases.
 
Perhaps we can take some comfort from the fact that public comments on the Government’s proposed model closed on 1 February this year, and that we have heard nothing from the Government in the six months since then may suggest it is taking the criticisms received seriously, and has been entirely redesigning its flawed December proposal. 
 
 
Conclusion
 
On Monday, a Government Senator told the Senate that being the 13th least corrupt country in the world was “a significant achievement”.
 
In 2013 when Labor was last in power, Australia ranked 9th in the world.  If sliding into a reputation for corruption is the goal, then I guess the Morrison Government can argue that our demotion in global rankings for integrity is ‘a significant achievement’.
 
I say we are better than that.
 
Labor does not believe that Australia should give up its character and reputation as a nation of integrity. To the contrary, Labor believes that we can and must always be striving to do better.  
 
We do not believe corruption magically stops at state borders, we do not believe that unions alone should be the target of legislation aimed at “ensuring integrity”.
 
The public overwhelmingly believes that action needs to be taken to tackle corruption and restore trust in government.
 
Time’s up.
 
Labor – and the Australian public – know that our nation needs a national integrity commission.
 
Time’s up for the Morrison Government to get their priorities right, and work with us to make that happen.
 
ENDS

  • Mark Dreyfus
    published this page in Speeches 2019-09-11 14:03:42 +1000

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