Ministers could be exempt from from scrutiny under the government's draft legislation for a federal integrity commission, a group of eminent retired judges has warned.
Attorney-General Christian Porter released an exposure draft of the bill for the Commonwealth Integrity Commission late last year, more than a year after the proposed structure of the commission had been flagged by the government.
In a submission to the government's consultation process by the National Integrity Committee, which is supported by the Australia Institute and includes former High Court judge Mary Gaudron QC and former judges from the NSW, Victorian, Queensland and Western Australian Courts of Appeal, the government has been warned the current wording could leave decisions and actions made by ministers unable to be investigated.
According to the judges, the exposure draft provides that "[a] corruption issue relates to a parliamentarian if the corruption issue relates to corrupt conduct of the parliamentarian as a parliamentarian".
"This gives rise to the question whether corrupt conduct by a parliamentarian when discharging ministerial responsibilities would give rise to a corruption issue," the judges write.
The ambiguity around whether a parliamentarian's conduct as a minister could be considered corrupt and referred to the commission must be removed, the judges argue.
"It's a lack of clarity in not referring to the minister's actions as minister," explains former assistant commissioner to the NSW Independent Commission Against Corruption Anthony Whealy QC, who is also part of the committee of former judges.
"It's a gaping hole [in the legislation]," Mr Whealy said.
"It could be easily fixed by changing the legislation to put in a separate paragraph to make sure that in his capacity as a minister his actions can be scrutinised and examined by this body, but that's not the way it's worded at the moment.
"It could be an oversight but I rather think it's not."
The future of the government's integrity commission legislation is unclear, with Mr Porter on leave from his role for a few weeks in the wake of the historical rape allegation against him.
The allegations have fuelled calls for an independent inquiry to ascertain if he is a fit and proper person to stay in the role of Attorney-General.
Delays have already plagued the years-long push for a federal integrity commission, after the government announced it would introduce an anti-corruption watchdog at the end of 2018.
The almost two-year wait for the exposure draft bill to be released can only partly be explained by the pandemic in 2020.
As well as Mr Whealy and Ms Gaudron, the National Integrity Committee includes former NSW Court of Appeal judge Paul Stein QC, former Victorian Court of Appeal judges Stephen Charles QC and David Harper QC, former Queensland Court of Appeal judge Margaret White and former Western Australian Court of Appeal president Carmel McLure.
The former justices savage the government's proposed commission, saying it "falls disastrously short of providing an effective body to counter and expose corruption at a national level".
Under the government's proposal, law enforcement bodies would be covered under a different arm of the commission to public servants and parliamentarians, with the latter not subject to public hearings, different standards for an investigation to be triggered and no public reports or findings.
"An anti-corruption division that does not permit public hearings, that makes no public findings and does not issue a public report represents a manifest failure in the endeavour to limit corruption in the public sector and in the Federal Parliament," the judges write.
They continue by saying the government's proposed commission is designed to address only criminal corruption, meaning it will fail to address many other issues, particularly in the public service, where "corruption is more insidious, more pervasive, and more difficult to detect than the corrupt conduct of police or border officials".
The submission points to an example where a minister may make a decision that is financially beneficial to a company or individual that had earlier donated to their political party as something that may not be covered by the proposed integrity commission because it may be considered "non-criminal corrupt conduct".
"In fact, these sometimes are among the worst and most prevalent form of corruption - difficult to uncover, difficult to prove and disturbingly far-reaching in their consequences," the submission says.
"To limit the investigations of the Public Sector Division into matters only where criminal conduct is involved is a serious shortcoming."
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