Public Sector Informant: Integrity watchdogs a small price to pay for easier public administration

During the 2000s there was considerable discussion among lawyers and academics about whether these institutions were so vital that they formed a fourth branch of government (the other three being the parliament, the executive, and the judiciary). An influential lecture by Justice Jim Spigelman in 2004 kicked off discussion over the next decade and a half, including insightful analysis by former WA Ombudsman Chris Field and a thorough overview of the evolution of the concept by Griffith University's Professor AJ Brown.

In the 2020s there is less cause for optimism that integrity institutions will continue to grow and thrive. There are warning signs from three jurisdictions: South Australia, NSW and the Commonwealth.

In South Australia the government has significantly watered down the powers of its Independent Commission against Corruption (ICAC). It can no longer investigate misconduct or maladministration. Its scope is confined to corruption, defined narrowly (basically corruption that is also illegal).

Public servants in the state are no longer obliged to report cases of misconduct. Most such cases will now never come to light.

The SA integrity commissioner Ann Vanstone said her "powers to investigate have been decimated". Ministers and senior officials in South Australia - barring extreme cases of stupidity or greed - now have multiple opportunities for misconduct without scrutiny or consequences.

There was a case for removing maladministration investigations from ICAC. Maladministration by government officials is more properly a matter for the ombudsman or review by the courts. The South Australian legislation however went well beyond clearing up that anomaly, removing misconduct as well.

It is important to investigate misconduct. Many forms of misconduct in public office are not technically illegal: allowing conflicts of interest to influence decision making; appointing unqualified mates or supporters to paid government positions; overpaying suppliers or consultants in hope of future return favours (provided no actual cash changes hands); and of most concern, lucrative post-public-service appointments to companies that a minister or public servant previously used to regulate or fund. Indeed, many democratic countries prohibit these kinds of behaviours. Left unscrutinised they encourage even more blatant forms of misconduct and corruption. That is the path South Australia has chosen.

NSW still has a vigorous and independent ICAC, currently holding hearings in relation to former premier Gladys Berejiklian. It's impossible to predict the outcome of that investigation, but it has led to questioning of the role of ICAC by some senior Liberal Party figures. It was well supported when pursuing Labor ministers Eddie Obeid and Ian Macdonald; less so now it is a former Liberal premier. Admittedly that's not new: in its early days ICAC was characterised as "Frankenstein's monster" after investigating its creator, former premier Nick Greiner (eventually cleared).

NSW is less likely than SA to gut the powers of its ICAC - unlike SA, independents and minor parties in the NSW upper house won't take kindly to that kind of move. It is abundantly clear that NSW has benefited from having a tough anti-corruption body. The state that was once the byword for having extensive corruption at both ministerial and public service levels has now largely been cleaned up - due not only to ICAC but also to other institutional changes such as banning political donations by property developers.

The Commonwealth is different again - it does not even have an anti-corruption commission. Government plans to create one have stalled. In any case, the government's model has been widely criticised, with one former judge saying it would "hide corruption, not expose it".

Other integrity institutions continue to do an effective job in their respective areas of expertise: notably, the Australian National Audit Office and its state and territory equivalents, and various ombudsman offices. They can however be undermined in several ways. One is starving them of funds - these institutions are chronically under-resourced. The other is for governments simply to ignore them - a fate that has befallen freedom of information, now routinely ignored or subject to delay and obstruction by governments and even prime ministers. An independent report earlier this year stated "Australia's FOI system is broken".

The three jurisdictions of concern all have Liberal or Coalition governments. That is a historical anomaly. Liberals have traditionally been strong supporters of individual liberties and independent institutions to safeguard citizen rights and limit bureaucratic overreach. It was the Coalition government under Malcolm Fraser that introduced the fundamentals of an integrity system, including an administrative appeals tribunal, judicial review of administrative decisions, the independent ombudsman's office, freedom of information (one of its last major pieces of legislation, in 1982) and other integrity reforms.

These institutions are important for trust in government.

Even if an audit or investigation can be troubling - and career ending for the tiny minority of officials who are corrupt or misbehaving - good public servants recognise this is a small price for having a reliable and trustworthy system of public governance. In the long run, it makes public administration easier, ensuring assistance and cooperation from the community, including willingness to pay taxes to fund public services. Sure, some countries don't worry about integrity in their public sectors, ensuring compliance with laws and taxes by threats of torture or imprisonment.

They also aren't where most Australians would prefer to live.

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