The saga surrounding the proposed Commonwealth Integrity Commission (CIC) began in December 2018 when the Attorney-General, Christian Porter, released a proposed model that was severely criticised by nearly every anti-corruption expert in Australia.
The informed criticisms were obviously ignored by the federal government, as the same flaws exist in the exposure draft bills released in November. The bills many defects are too numerous to itemise here, but central to just about all is the CIC's divided structure. It is designed to protect 80 per cent of the public sector from transparent accountability processes; and, in a discriminatory fashion, imposes more stringent procedures on approximately 20 per cent.
It does so by creating two distinct divisions, the public-sector division and the law-enforcement division. The 80 percent that constitute what is, in effect, the shielded division, include members of Parliament, their staff and most public servants. This division is, among other things, protected from public hearings, while those with law-enforcement and regulatory capacity (currently nine departments or agencies) can be subjected to public hearings.
The Attorney-General's Department falls into the protected public-sector division.
The decision to create separate divisions is based on a false assumption that public servants who possess law-enforcement and regulatory powers are more prone to corruption than the rest.
This assumption is not only an insult to all who fall into the law-enforcement division, it is also asking the Australian people to believe that MPs, ministerial staff and the vast majority of public servants are less likely to engage in corrupt behaviour.
No one, including the Attorney-General, should be surprised if those who undertake broader law-enforcement and regulatory roles demand that their unions and representative bodies take strong action to address this slight on their character.
The decision not to allow public hearings for the public-sector division contradicts the expertise of those who head anti-corruption bodies in Australian states and territories.
The decision not to allow public hearings for the public-sector division contradicts the expertise of those who head anti-corruption bodies in Australian states and territories. They know from personal experience the value of having the discretion to decide when to hold public hearings, and have stated that such a discretion is essential to the exposure of corruption. These experts also view public hearings as an important corruption prevention tool.
The Attorney-General has repeatedly pointed to the damage done to people's reputations through public hearings. If he believes that to be the case, his proposed legislation is saying that such a risk is totally acceptable for the 20 per cent of public servants working in the law-enforcement division, but absolutely not for those in the public-sector division.
When releasing the exposure draft bills, Mr Porter claimed that the CIC will be more powerful than a royal commission. As most experts have pointed out, this is not the case. The most obvious difference is that royal commissions have the ability to hold public hearings.
Being able to do so has proved repeatedly to be in the public interest. For example, how would the Australian people have learned the shocking truths revealed by the royal commissions into aged care quality and safety, institutional responses to child sexual abuse, and misconduct in the banking, superannuation and financial services industry if there were no public hearings? What reforms would have been achieved if these investigations were not held in public, but rather only subjected to court processes? The answer is obvious.
Another unacceptable aspect of the draft legislation is that taxpayers who fund all aspects of public life - and public-sector whistleblowers - are prevented from making a referral of corrupt conduct to the CIC if it involves anyone in the protected public-sector division. However, any person can do so if it relates to the law-enforcement division.
Not to mention the inability of the CIC to exercise vital own-motion powers in relation to the shielded public-sector division, and its blanket inability to receive anonymous complaints. It is worth remembering that former NSW MP Eddie Obeid's case started with an anonymous phone call to ICAC suggesting that it should look into a particular matter.
And let's not leave out concerns over the definition of corrupt conduct. Among other things, it excludes anyone outside the public sector who is or has attempted to improperly influence the decisions and behaviours of public servants.
The Attorney-General may continue to ignore the informed criticisms of the draft bills, including the unacceptable divided structure, and instead exercise one of two options.
He may choose to delay introducing the CIC bills into Parliament until after the next election, or he may introduce the legislation with only minor, innocuous amendments before the election, knowing that there is every chance it will not be passed into law.
If he chooses the latter, the federal government could then claim to the electorate that it tried to establish an anti-corruption commission, but was prevented from doing so by the Senate. Such a claim would be disingenuous, as the flaws in the CIC model are so significant that no parliamentarian genuinely concerned about delivering accountability, transparency and openness in public life, and in a non-discriminatory manner, could vote for a CIC in anything like its present form.
Put simply, it fails to deliver effective public scrutiny across the entire public sector, which is a hallmark of any functioning democratic political system.
This model may well prove to be a step too far for the federal government. While deciding on the final shape of the CIC, it may wish to recall that integrity-related issues have been a deciding factor in state elections. There's no reason to think they won't be at the next federal one.
- Dr Colleen Lewis is an honorary professor at the ANU's Australian Studies Institute.