WHY AUSTRALIA NEEDS A NATIONAL INTEGRITY COMMISSION
MONDAY, 21 JANUARY 2019
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Good afternoon – it is a pleasure to be at QUT today and thank you very much for the opportunity to speak today about Labor’s plan for a National Integrity Commission and the question of corruption in Australian public life more generally.
I would like to begin by acknowledging the traditional owners of the land on which we meet, and pay my respects to their elders past, present and emerging.
I acknowledge Professor John Humphrey, Executive Dean of the Law Faculty and Professor A J Brown, my co-panellists, and Dr Paul Newbury, our fantastic Labor candidate for the seat of Brisbane.
The topic I have been asked to speak about today is indeed a thorny one.
Many people around Australia – including here in Queensland, where your Crime and Corruption Commission has been operating for 17 years – are very used to the operation of state-based anti-corruption bodies.
Queensland of course is arguably more familiar with the perils of corruption, and the need for strong investigatory bodies, than other states. The Fitzgerald Inquiry uncovered a vast web of corruption inside the Queensland state police force, with far-reaching consequences including the downfall of a Premier.
The need for anti-corruption bodies at a state and territory level is so widely accepted that they now exist, or have been proposed, in every jurisdiction in the country. And yet it has taken the federal sphere a very long time to take notice of this as an issue.
Why would that be?
Mystifyingly, there has long been a perception that there is less of a danger of corruption at the federal level. That is, perhaps, because there is slightly more distance between federal politicians and the types of public spending or approvals processes that have previously been the subject of high-profile corruption cases. Things like development approvals or planning permits, for instance – and of course many a state politician has fallen foul of the ban on receiving donations from property developers.
It may be harder to see the opportunity for corruption at the federal level. But that does not mean it is not there. And if it is there, then the potential scale of it is mind-blowingly large. Sure – local councils and state governments can approve the development of hundreds of acres of land. But the Department of Defence puts out tenders that are worth many billions of dollars. The French submarine tender, for instance, is worth at least $50 billion.
I am not singling out the Department of Defence here, of course. I simply wish to make the point that the Commonwealth Public Service, and the Commonwealth government that oversees it, have access to vast amounts of money and enjoy vast decision-making powers which are not beyond the reach of corruption.
Of course there have been few large-scale corruption scandals at the Commonwealth level in recent years, and the current government has used this as an excuse to obstruct on any progress on the issue for some time.
But those corruption scandals which have come to light should be enough to worry us.
First among these are historical cases of corruption, such as the Australian Wheat Board kickbacks scandal and the Securency affair.
I was deeply concerned to read in January of this year that a survey of federal public servants by the Australian Public Service Commission revealed that five percent of respondents reported seeing misconduct in their workplaces.
Just as concerning were the results of another recent survey which measured the community perception of corruption at the federal level. That survey, conducted by Griffith University and Transparency International, showed that an incredible 85% of respondents believed that at least “some” federal members of parliament were corrupt, while 18% considered that most or all members were corrupt.
I’m not suggesting that’s a reflection of reality – but that is a very, very worrying number of people who think there is corruption among the ranks of our federal politicians.
That kind of perception reflects a corrosion of trust Australians have in their elected representatives and is fuelled by conduct like the very public disgrace of Stuart Robert who used his ministerial office to benefit a Liberal donor in commercial dealings with China.
Every three years, Australians head to the ballot box and vote for their preferred candidates. Every three years, the social contract between Australians and their elected representatives is renewed – the voter gives the government of the day power to govern, in return for the expectation that members act in the voter’s best interest.
Without going into any specific international comparisons, there are some serious consequences when voters feel that contract has been broken. When they rebel against so-called “politics as usual”, that’s usually a sign that they are rebelling against the political system full stop. And that is an outcome no-one should want.
So – what role can a National Integrity Commission play?
The most obvious, of course, is to hold those responsible for corruption in the Commonwealth to account. As I said earlier – it is not clear that there are, currently, significant corruption issues. If there were, I would report them! Just because we can’t see it, however, does not mean it is not there.
There are a number of bodies that currently have responsibility for anti-corruption at the Commonwealth level, of course – like the Commonwealth Ombudsman or the Australian Commission for Law Enforcement Integrity, who should be picking up and acting on any reports of corruption that come to them.
But it is hard for us to foresee, now, just what kind of effect a dedicated, overarching anti-corruption body could have in terms of bringing more suspected cases of corruption to light. That is particularly so if that anti-corruption body is designed to allow it to accept tip-offs or referrals from the public – more on that later.
If the creation of this body encourages more whistleblowers to come forward, that can only be a good thing. That will only occur, of course, if there is a general faith that the anti-corruption body is robust and effective, and is likely to catch those who are suspected of corruption. Without that faith, why would a whistleblower potentially risk his career coming forward?
A second role a National Integrity Commission can play is in education and prevention. There are two prongs to this – the existence of a strong watchdog should have a deterrent effect, particularly once some successful investigations are concluded. But there must also be a proactive element to the National Integrity Commission – we envisage the Commission’s staff giving seminars to the public service, to staff of politicians and others, about their work and how to avoid corrupt practices in their workplace. No such thing occurs at the moment, and it’s a big gap.
As you would be aware, Labor announced our plan for a National Integrity Commission back in January 2018, with seven detailed design principles.
- First, the Commission will operate as independent statutory body, with sufficient resources to ensure it is able to carry out its functions free from interference, or even the threat of interference, from the government of the day. This is a fundamental design principle, ensuring that the Commission operates with the fearless independence of a standing Royal Commission.
- Second, the Commission would be constituted by one Commissioner and two Deputy Commissioners, each of whom would serve for a single, fixed, five-year term.
- Third, 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.
- Fourth, 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.
- Fifth, while the presumption will be that hearings will be held in private, the Commission will have discretion to hold public hearings where it determines it is in the public interest to do so. Labor will continue to consult on the appropriate threshold and possible guidelines on when hearings should be held in public.
- Sixth, the Commission will only be empowered to make findings of fact. Any findings that indicate criminal conduct has occurred would be referred to the AFP or the Commonwealth Director of Public Prosecutions.
- Seventh, and finally, a Bipartisan 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.
For a long time after our announcement in January 2018, we were on our own. In the last quarter of last year however the balance began to tip.
This is thanks in no small part to the work that the Australia Institute and Professor AJ Brown did with Cathy McGowan, the Independent Member for Indi, which resulted in the introduction of a Private Members Bill which put forward a detailed model for a National Integrity Commission.
This – finally – brought the government out of the woodwork. Dragged kicking and screaming once again, just as they were to the Banking Royal Commission, Christian Porter and Scott Morrison announced their own version of an Integrity Commission just before Christmas.
Their “Commonwealth Integrity Commission”, or CIC, is the integrity commission you design when you don’t want an integrity commission.
Their model creates 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 two wings have vastly different powers, and are in effect two different bodies. The ACLEI wing would retain all its present investigatory powers and the ability to hold public hearings – although notably ACLEI has not held a single public hearing since its foundation in 2006. The second wing, however, would be far more limited:
- It could not self-initiate inquiries or act on tip-offs from the public, as it would have to rely on referrals of allegations of serious or corrupt conduct from agency heads. How that would work in the case of politicians is unclear.
- It would not hold public hearings, full stop.
- It would not make findings of corruption – instead it would simply determine whether any case is strong enough to refer to the CDPP.
- The threshold for investigation would be a reasonable suspicion that the conduct in question constitutes a criminal offence. This rules out serious misconduct being investigated – for instance if an MP is found to have unfairly favoured a major donor in policy decisions.
- It would not have the power to seize evidence nor conduct surveillance – powers that have proved vital to several cases in state-based anti-corruption systems.
I will be interested to discuss several of these finer points with Professor Brown and Professor Humphrey during the panel discussion. Suffice to say, it is clear that the coalition has squibbed it here and it’s not hard to see self-interest at play.
If politicians and their staff are seen to be somehow exempt from the integrity mechanisms that other parts of the Commonwealth are subject to, how is that right? 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 many Australians either.
Labor has copped some criticism for not putting forward exact detail in terms of our model. A lot of that criticism has been inaccurate. But we also acknowledge that designing a body as complex and as significant as this is properly the work of government, with all the resources available to government.
In government, Labor would embark on a process of consultation and hard work, with the benefit of expert advice, in order to get this right.
In particular, we are 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 an attempt to prove a case against anti-corruption bodies generally. I don’t see that is the lesson that is to be learned from those kinds of cases.
I think the lesson to be learned is that anti-corruption bodies are difficult to get right and must be very delicately designed. The current government has effectively ignored that task, but it is work a Labor government would be prepared to do.