The ACT is inching towards establishing an anti-corruption agency, and its government's call for public submissions is an encouraging development – especially as the idea has been slumbering in the territory for almost 30 years.
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Apart from the Commonwealth – where political intransigence and bipartisan sensitivity to campaign funding continues to impede the establishment of an anti-corruption agency – the ACT, by the end of this year, will be the only jurisdiction not to do so, with the Northern Territory set to join the ranks later this year with its Anti-Corruption, Integrity and Misconduct Commission.
Right at the outset of self-government in the ACT, the Legislative Assembly's standing committee on public accounts, under the leadership of the late Trevor Kaine, later to be chief minister, recommended establishing an independent advisory committee against corruption. A bill was introduced into the Assembly but it lapsed in 1991.
Anti-corruption was in the headlines at the time and progress on the issue would have placed the territory at the forefront, with the NSW Independent Commission Against Corruption paving the way, and developments in Queensland and Western Australia heading in the same direction. Alas, the political will was lacking and, despite recurring bouts of interest, usually at election time, nothing has eventuated.
It flared briefly again in 2001 when an Assembly committee shied away from a proposal to establish a commission for integrity in government, arguing on grounds of complexity and cost.
Looking back at the 1989 proposal, however, it was a remarkably mild initiative – certainly lacking ICAC's clout or reach. The committee recommended it be empowered to:
- receive allegations or complaints of corrupt conduct involving ACT public officials;
- determine which agency was the most appropriate to investigate and act on the complaint, and forward it on with whatever comment or recommendation it considered appropriate;
- receive reports from those agencies on the outcomes of those investigations; and
- monitor the types and resolutions of complaints and allegations.
Significantly, the body proposed would not have had the power to carry out investigations. In reality, its proposed function was little more than acting as a mail room.
The difference at the time was that events in NSW, Queensland and Western Australia had been driven by public concern at behaviour exposed in several royal commissions, specifically police corruption in NSW and Queensland (the Fitzgerald inquiry) and political corruption in Western Australia (WA Inc).
In each of these jurisdictions, the shape and function of the bodies set up was largely determined by experience and the shortcomings exposed in detailed inquiries. The ACT, for its part, had no corresponding outrage, and the issue was quietly shelved.
But with Victoria and a reluctant South Australia joining the club – driven more by public concern for integrity safeguards than specific scandals – it has become difficult for the ACT to remain on the outer.
However, the issue is, for all its importance, delicate in the extreme. It needs to be very precise about what it is seeking to do, and what powers and resources will be allocated to such an agency.
The wide-ranging options paper offers plenty of scope to canvass these issues, noting the options being considered for the ACT corruption body include the powers to:
- Conduct own-motion investigations, rather than waiting for complaints or having investigations referred to it – a power shared by commissions elsewhere.
- Compel witness and answers – again, a power that other state bodies have.
- Hold public hearings, which the paper says would ensure public confidence in the body and also adds a "moral dimension", contributing to "the respect and perhaps dread that people engaged in misconduct would feel". Other states allow public hearings, although some appear to prefer hearings in private.
- Apply for search warrants and carry them out, or to issue its own search warrants, which commissions have in NSW and South Australia.
- Use listening devices surveillance, undercover agents and "sting" operations to test people. The options paper says the Queensland and Western Australian bodies have wide powers in surveillance and stings, and the power to investigate major crime that goes beyond corruption and misconduct. It is less clear in other states whether powers extend beyond surveillance to undercover operations or "integrity testing".
- Take action against people, such as imposing fines or making findings of unethical conduct, or to order mediation instead of prosecution. The approach varies between the states; in NSW the commission makes findings and recommendations, but action is up to other bodies.
- Prosecute complainants who are "purely vexatious", to protect against people using the commission maliciously.
For all the feelgood sentiments that creating an anti-corruption generates, the reality is that anti-corruption simply does not come cheap. To be anything more than mere window dressing, a genuine anti-corruption effort must be well resourced, financially as well as institutionally. In theory at least, corruption can be eliminated, but at what cost?
The ground-breaking study by Robert Klitgaard, Controlling Corruption, in 1988, took a cost-benefit approach in looking at the marginal social cost incurred in fighting corruption, formulating his "optimal amount of corruption", whereby the cost of corruption was calculated against the cost of removing corruption, and arriving at the least-cost combination of corrupt activities and efforts to reduce them.
In other words, any unrestrained or unlimited commitment of resources to fighting corruption could easily exceed the cost of the corruption itself. It was a pragmatic way of making the point that corruption can never be eliminated, only reduced or minimised, as the title of his book suggests. Of course, the formulation leaves unanswered the key question: what is an "optimal" level of corruption? And who determines that level?
There is another significant constraint to be considered in the field of anti-corruption, and that is process. Imposition of stringent administrative controls aimed at stamping out corruption can actually distort, and even corrupt, the very thing they are designed to protect: effective public administration.
In The Pursuit of Absolute Integrity, Frank Anechiarico and James B. Jacobs show how proliferating regulations and oversight mechanisms designed to prevent or root out corruption can seriously undermine governance itself. They argue that by constraining decision-makers' discretion, shaping priorities and causing delays, corruption control – no less than corruption itself – has contributed to what they see as a contemporary crisis in public administration.
As public administration strives to adopt practices from the private sector, increasingly onerous accountability works to negate productivity or efficiency gains by discouraging innovative and entrepreneurial behaviour in public managers. The "pursuit of absolute integrity", while ostensibly laudable, can itself be self-defeating by surpassing the core business of an agency. It is a genuine dilemma for policymakers to reconcile apparently conflicting goals of administrative efficiency and accountability, and, in addressing anti-corruption programs and integrity enforcement, this needs to be taken into account.
In an earlier study, the same authors looked at the evolution of corruption control in the United States, examining the proliferation of anti-corruption mechanisms deployed at the urban government level, and finding, to a significant extent, the organisation, rules and energy of urban government "are focused on surveilling and controlling officials rather than on the production of government outputs". Among a series of case studies showing how overzealous supervision can be highly counterproductive, they looked at the New York City Buildings Department, long plagued with corruption, and in which stringent administrative controls were implemented.
One protocol, established in response to a city comptroller's audit, required all field inspectors to return to borough headquarters at the end of the day, instead of leaving for home from their last inspection site. The policy was meant to ensure that personnel did not defraud the city by leaving work early, perhaps filling out inspectional reports while sitting at home. While no one knew how much, if any, corruption had been prevented, the policy led to an almost 30 per cent reduction in inspector productivity because of the time it took to return to the office every afternoon.
So, what we have here, from a far-reaching integrity enforcement program, is a drastic reduction in productivity with no tangible evidence that it prevented or minimised corruption in any way at all. It serves to illustrate both the complexity of anti-corruption and the futility of seeking one-size-fits-all solutions.
Just as a general will not use a generic battle plan in every conflict, so, too, must policymakers think strategically about what it is they seek to counter, and what they propose to achieve at what cost.
Such a task requires very careful and detailed planning – but at least the ACT now has a wealth of experience from other jurisdictions on which to draw.
Dr Norman Abjorensen, of the ANU's Crawford School of Public Policy, is the author of Combating Corruption: Implications of the G20 Action Plan for the Asia-Pacific Region (2015).
