On January 28, then deputy prime minister Barnaby Joyce told Sky News that a federal independent anti-corruption watchdog was unnecessary because the Senate already performed that function. Only days later, the scandal that ultimately claimed Joyce's career once again brought the conduct of our public officials into the limelight.
Yet the Senate's response to revelations that Joyce accepted rent-free accommodation from a prominent Armidale businessman and might have had a part in moving his then-not-partner between ministerial offices left one wondering whether comparing the Senate to a lapdog is more apt than a watchdog.
First, we witnessed Joyce's Senate colleagues falling over each other to pledge their support for the embattled leader – before the full story had emerged. We then witnessed the Senate pass a resolution calling for Joyce's resignation without undertaking any investigation whatsoever. The final curtain on Joyce's ministerial career only fell after allegations of sexual harassment were raised. Now, following his resignation, it seems unlikely that allegations of ministerial misconduct will be investigated.
I'm not about to (nor would it be appropriate for me to) add my voice to the already cacophonous commentary on Joyce. And let me be clear: I don't think Joyce's personal relationships are a matter of public concern. But sensible allegations that ministerial codes were breached should be investigated and, currently, the very body nominated by Joyce to perform that function seems unable or unwilling to do so.
It's therefore unsurprising that the topic of a federal anti-corruption watchdog (let's call it a federal ICAC) has re-entered the national discussion.
Last month, the Informant published an articulate analysis by Professor Richard Mulgan suggesting that arguments for a federal ICAC have been overstated. Nevertheless, with about 4900 public servants reporting that they witnessed corrupt conduct (in the 2017 State of the Service Report), perhaps the time for a federal ICAC has well and truly come. And in the wake of Joyce's recent scandal, perhaps a federal ICAC is now inevitable.
But what would the watchdog look like?
The examples provided by the various state anti-corruption bodies are a useful start. At one end of the spectrum, the NSW ICAC has broad powers to compel witnesses and conduct public hearings. This has led to accusations it is akin to a Star Chamber. At the other end of the spectrum, and shrouded in strict secrecy, is the South Australian ICAC. In fact, it was reported that commissioner Bruce Lander himself requested that the state government amend its legislation to allow him to conduct limited public hearings.
While I'm not in a position to predict what model is likely to be chosen, most recent discussions suggest a federal ICAC would fall somewhere between the NSW and South Australian models – where Victoria's Independent Broad-based Anti-corruption Commission sits. If this is the case, it's likely a federal ICAC would have jurisdiction to investigate serious and systematic corruption among public officials and, in some limited circumstances, private individuals. It also seems likely that hearings would predominantly be conducted in private, unless the particular circumstances of the case call for a public hearing.
So what would this mean for the Australian Public Service?
First, what we won't see is a federal ICAC investigating allegations that a public servant has been treating the stationary cupboard like an all-you-can-eat buffet. In fact, it's likely that for the vast majority of public servants in the vast majority of cases, there will be no change to the disciplinary processes that apply to their APS employment. Nor, for that matter, should there be. The APS accountability system generally works well and disrupting that balance with a federal ICAC would be unfortunate, to put it mildly.
Howeverthe introduction of a federal ICAC could offer public servants a powerful new whistleblowing mechanism.
Presently, internal disclosures are the most common way public servants report corrupt conduct within the APS, and usually this is very effective. Nevertheless, problems can arise in a number of circumstances – not least of which when the employee who committed the misconduct is the employee responsible for investigating misconduct allegations. It's also my experience that some public servants are reluctant to report misconduct due to a fear of reprisals (whether or not that fear is justified).
While anonymous complaint mechanisms go a long way to remedying this, it is the federal Public Interest Disclosure Act that offers the primary protection to public servants who fear reprisals. However, notwithstanding the Commonwealth Ombudsman's oversight of the disclosures scheme, responsibility to investigate allegations of corruption still rests predominantly with the agencies themselves.
Although there is no question that the agencies undertake this responsibility with the upmost professionalism, their investigative capacity is limited. For example, agencies cannot compel potential witnesses to give evidence. Furthermore, the findings of internal departmental investigations are rarely made public, a powerful mechanism for transparency in government administration. By addressing these shortcomings, a federal ICAC could become an effective whistleblowing tool for public servants reporting corruption in the APS.
However, it's these same two features of independent anti-corruption watchdogs that most concern opponents to a federal ICAC: the capacity to compel witnesses and the ability to conduct all or some proceedings publically. It is often suggested, not unreasonably, that watchdogs with these powers can besmirch reputations without good reason. This is of particular concern given a history of state ICAC investigations sometimes taking on a life of their own (I need only mention the name Margaret Cunneen).
Finally, if there's one thing the Joyce saga has demonstrated, it is that allegations of misconduct rarely only affect the accused individual. In particular, their families often end up bearing much of the burden. It's essential that any federal ICAC contain appropriate protections lest more families find themselves at the centre of a national controversy they never asked to be part of.
While a federal ICAC has the potential to be a powerful whistleblowing tool for public servants reporting corruption, we must make sure that our enthusiasm for accountability does not take us out of the pan and into the fire.