By Professor A J Brown, Policy and Law, Griffith University and Board member TI Australia

Crunch Time for A Federal Integrity Commission which Commands Public Confidence

The resignation of NSW Premier Gladys Berejiklian, in response to confirmation that the Independent Commission Against Corruption (ICAC) is widening inquiries into her (secret) former partner, has done a huge job of fuelling awareness that it’s way past time for a federal anti-corruption body.

While the resignation came as a shock to many admirers of her leadership, it was no shock to anyone watching this saga publicly unfold over previous weeks, months, and years.

Senior Liberal figures were describing her position as untenable, as far back as December 2020.

But Ms. Berejeklian’s decision to stand down – taken more graciously by two previous Liberal premiers accused of far less – has highlighted the reputational costs of corruption inquiries, even when they are far from over.

Accountability and transparency should never be on hold

The ICAC’s decision to proceed with the inquiry reinforces the strength of Australia’s integrity systems.  It highlights that even in the middle of a global pandemic, accountability does not and should not stop, and our institutions and democracy must carry on.

As argued in The Guardian, the timing affirms the independence of ICAC, which would only be accused of political favouritism or a cover-up if it looked the other way, or delayed.

Transparency International’s monitoring makes clear corruption and accountability risks only grow in a context like the pandemic, as governments spend a lot of public money, fast, on crisis responses, often while putting oversight mechanisms on hold.  This makes it even more reassuring that our integrity bodies are still working.

Spotlight on the missing national integrity commission

But what does it mean for our long-overdue federal integrity commission – the last jurisdiction in Australia to establish a specific-purpose anti-corruption agency?

Transparency International Australia first began calling for such an agency as far back as 2005.

In 2017, the bipartisan Senate Select Committee on a National Integrity Commission endorsed our approach as a key input into how the Commonwealth parliament should fill this gap.

Most recently, after the Morrison government released the highly criticised exposure draft legislation for its Commonwealth Integrity Commission in November 2020, we mapped how its flaws could be fixed.  Our report, Australia’s National Integrity System: The Blueprint for Action showed how a best practice model can restore confidence in Australia’s corruption response.

A blueprint for action

As Australia awaits final legislation from the Morrison government, TI Australia’s Position Paper confirms that this confidence will depend on an agency that has:

• A broad scope of corruption that can be investigated – not only provable criminal offenses;
• Strong, systematic, and enforced prevention measures
• Best-practice investigation powers, including full scope for public hearings when needed
• The ability for any individuals, including whistleblowers and members of the public, to lodge corruption complaints or information.

This does not mean any existing State anti-corruption body is perfect – far from it.  All provide lessons for what can, and should, emerge as new best practices in a federal model.

After all, most of these features are already in place for about 20 percent of the federal public sector – just not most of it, including huge areas like Defence, social security spending, and infrastructure, nor the parliament or ministers themselves.

There are also options for better safeguards for reputations when corruption allegations are first lodged, and clearer legal criteria for when public hearings will be in the public interest, especially so they do not undermine potential criminal prosecutions.

South Australia shows how not to do it

But the answer is not a knee-jerk response to the Berejiklian resignation, so as to clip the integrity commission’s wings from the outset, just because parliamentarians fear what it may find or how it might complicate their electoral survival in a tough political world.

South Australia’s rushed attempts to improve on its original, poorly designed anti-corruption model – which has only ended up entrenching, not solving its problems – should sound a big warning to the federal government.

Politicians’ claims of ‘due process’ and ‘presumption of innocence’ are not likely to wash with most citizens and voters.  Used inaccurately or as an exercise in self-protection, those claims simply tend to further erode public trust and confidence.

For example, when Communications Minister Paul Fletcher assured ABC Q&A that the government’s plans include the full powers of a royal commission – repeating statements by former Attorney-General Christian Porter – he ran the risk of parroting a line that is simply untrue.

Royal commissions have the discretion to use public hearings to expose wrongdoing, whether the action they then recommend is criminal prosecution or anything else.  So unless the new federal Bill includes that power, this promise will prove false.

But the reverse is also true, with public confidence set to increase if the Government’s assurances of a new, best practice model can be brought to fruition.

A huge opportunity

Getting this long-awaited reform right is a once-in-a-generation opportunity for the parliament and government to strengthen Australia’s system of democracy against official corruption.  And to rise above the scepticism fed by any perceived attempt by leaders to spin their way out of accountability.

International experience shows what a worthy and historic achievement this would be.