Where does the return of the Morrison government leave the federal government's integrity agenda? Immediate attention will focus on the future of the Coalition's proposed anti-corruption body, the Commonwealth integrity commission, which was announced in an Attorney-General's Department discussion paper in the dying days of the last Parliament and is yet to come before the Parliament.
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The commission was the Coalition's minimalist response to the persistent campaign for a federal independent commission against corruption (like NSW's ICAC), which was led by the Greens, the Australia Institute and several influential lawyers. These advocates eventually wore down the resistance of Labor, which became a committed backer of a powerful, well-resourced ICAC (though, as Attorney-General Christian Porter pointed out, Labor failed to provide a budget for an ICAC in its election policy costings).
No doubt the pro-ICAC lobby, having secured Labor's support, was, like everyone else, confident of a Labor election victory. It could afford to be casually dismissive of the Coalition's proposed commission in the expectation that it would enter history's dustbin while Labor went on to establish a fully-fledged ICAC. These plans are now shredded and supporters of a federal ICAC face a dilemma. Should they encourage the government to persevere with its commission, in the hope of forcing a few improvements through the Senate? Or should they refuse to cooperate, holding out for a more powerful version when political conditions become more favourable?
Much turns, first, on the merits of the commission itself and, second, on how committed the Coalition is to establishing it.
The proposed commission includes two divisions: one for law enforcement, which would have jurisdiction over agencies now covered by the Australian Commission for Law Enforcement Integrity (e.g. the federal police and the Department of Home Affairs). To these have been added other agencies with similar law-enforcement functions, such as the Tax Office, the Australian Securities and Investment Commission, and the Australian Prudential Regulation Authority. The other division, the public-sector division, includes the rest of the Australian Public Service, Commonwealth service providers and subcontractors, along with parliamentarians and their staff.
The proposed commission's scope and powers seem to have been designed to fall short of the best state models.
This sharp separation of jurisdictions appears clunky and ad hoc, given the commonality of many aspects of corruption. But it solves the practical problem of how to incorporate the Australian Commission for Law Enforcement Integrity into a new, larger structure. It may need revision over time but, in the short and medium term, it is a reasonable compromise.
More problematic are the commission's scope and powers, which seem to have been designed to fall short of those found in the best state models of anti-corruption commissions, particularly the NSW ICAC. For example, corruption itself is narrowly defined in terms of breaches of the criminal code and does not include other broader types of wrongdoing, such as misconduct or unethical behavior. At the same time, the discussion paper recommends broadening the criminal code's scope by adding a new category of "public sector corruption offences", which would incorporate and possibly extend a range of existing offences.
Also questionable are the limits on who can make referrals to the commission. For the law-enforcement division, the right of access is suitably broad. The current Australian Commission for Law Enforcement Integrity's rules are to apply, allowing referral from other agency heads or integrity officers, such as the ombudsman, as well as from staff or members of public. However, for the general public-sector division, access is much more restricted. Referrals can only come from agency heads, who will be obliged to report any suspected cases of corruption, or from the ombudsman and other integrity agencies, including the federal police. Concerned public servants or members of the public will have no independent right of access.
The rationale for the restriction is to avoid duplication. Citizens, or whistle-blowers, will be expected to use existing channels, such as complaints to agencies or appeals to the ombudsman, rather than instigate separate investigations with the anti-corruption commission.
The government will be happy to see the proposed commission languish in Parliament for lack of support.
The restriction on public access is even more glaring in the case of parliamentarians, where agency heads and the ombudsman do not have jurisdiction. The only way the commission could investigate a minister, parliamentarian or parliamentary staffer is if the commission coincidentally happened to find evidence of potential corruption while pursuing an investigation into someone else!
To the extent that the commission depends on initiatives taken by agency heads, a group hardly noted for their zeal in exposing wrongdoing among their staff, its impact is likely to be severely limited. Relying on the ombudsman is more promising but seems likely to overburden that office and to misdirect its focus away from rectifying less serious cases of maladministration. As for the federal police, still with egg on its face over the botched prosecution of Tax Office executive Michael Cranston, few initiatives can be expected from that quarter.
Furthermore, because the commission is not given the right to hold public hearings, no official suspected of corruption will face the glare of publicity short of actual criminal proceedings. Whether anti-corruption commissions should hold public hearings is a contentious question and raises genuine issues about the need to protect the reputation of innocent officials. However, most effective anti-corruption commissions reserve the right to hold public hearings in certain circumstances warranted by the public interest. Given the proposed commission's obvious objective of minimal disturbance to the status quo, it is hardly surprising that it offers maximum protection to the reputation of public servants and politicians.
The proposed commission therefore falls well short of the model set by commissions such as the NSW ICAC and seems unlikely, as it stands, to offer an effective counter to government corruption. Some benefit might come from clarification of the criminal offence of public sector corruption. But without more independence and resources, the commission would not come close to meeting the aims of those advocating a federal ICAC.
Crossbench critics could push for certain changes, such as allowing members of the public to apply directly for investigations of possible corruption. However, this would require increased funding beyond the government's projected budget, which is set at about three times the present cost of the Australian Commission for Law Enforcement Integrity (which it would absorb). Moreover, it is unclear whether the government will be interested in making serious concessions in order to see its commission established. After all, the proposal has already done its main job of neutralising the recent electoral attack from Labor and the Greens. In a worsening fiscal environment, with generous tax cuts to pay for, the government will be happy to see the proposed commission languish in Parliament for lack of support.
In the meantime, those worried about government integrity would be wise to take a break from placing so many eggs in the ICAC basket. There are plenty of other issues, many of which concern tightening existing rules and administration rather than tracking down individual malfeasants. To name a few recently referred to in this column:
Government advertising
The current system allows incumbent governments to saturate the media with taxpayer-funded pro-government propaganda, which contains little or no genuine information. The rules are reasonably clear but public service implementation has become woefully slack.
Lobbying and revolving doors
Current rules on registering lobbyists and on future employment by politicians and senior public servants are remarkably lax compared with similar jurisdictions; they don't cover matters such as in-house lobbyists (as distinct from third-party lobbyists) or access to ministers' diaries listing whom they have met.
MPs' office expenses
In theory, parliamentarians should spend funds allocated for office expenses only on parliamentary or constituency matters. In practice, many types of party-political spending are allowed. The same applies to travel expenses, even though they are now controlled by the Independent Parliamentary Expenses Authority.
Disclosure of interests
Disclosure of material interests is required for departmental secretaries and members of the senior executive service, but only to their immediate superiors (ministers or secretaries). The public has no right of access for interested parties (e.g. those tendering for a government contract and concerned about possible conflicts of interest).
Gift registers
Agency gift registers may be disclosable under freedom of information law but are not made available proactively on agency websites.
This is not to mention other longstanding issues, such as political donations, caps on campaign spending and a code of conduct for parliamentarians (with an independent commissioner for parliamentary standards). Progress can be made on any of these fronts without invoking the help of an anti-corruption commission.
Richard Mulgan is an emeritus professor at the Australian National University's Crawford school of public policy. richard.mulgan@anu.edu.au
