Are anti-corruption commissions and their role in Australia under fire again?
Today, New South Wales Prime Minister Gladys Berejiklian resigned after the Independent Commission Against Corruption (ICAC) official investigation in alleged conflict of interest. This will undoubtedly reignite the debate about the scope and powers of such bodies across the country.
The NSW ICAC is celebrated for exposing corruption in politics, including the now-convicted former Labor ministers Eddie Obeid and Ian Macdonald. But if the third liberal prime minister to step down as a result of ICAC investigation since 1992, Berejiklian’s demise will almost certainly set off a backlash.
The news followed South Australia’s parliament with overwhelming approval amendments to its own Independent Commission Against Corruption (ICAC) last week, narrowing the scope of its activities and reducing transparency.
Both events bring a sharp focus on the right balance of power for all such instances, especially the highly anticipated one federal integrity commission, still in the works more than two years after it was promised by the Morrison government.
However, the reforms in South Australia indicate why a political backlash against these important bodies would be extremely unwise.
What did South Australia do?
Far from instilling public confidence, South Australia’s reforms have sparked a lot of controversy. The changes strip the ICAC of its original powers to investigate not only corruption, but also misconduct and mismanagement.
Commissioner Ann Vanstone said the amendments “decimated” its powers to investigate corruption. A further series of changes jeopardizes her ability to become even report publicly about the progress or outcome of investigations.
Some have said the changes are largely an exercise in self-protection by the state’s parliamentarians. The lightning speed with which the SA parliament passed the laws only reinforces public mistrust.
It is more worrying than what happened in NSW in 2016, when Parliament restructured ICAC of that state to add more commissioners and a full-time CEO, seriously changing the role of commissioner Megan Latham. Latham resigned and returned to her seat on the NSW Supreme Court.
Some elements of the reforms in South Australia are arguably logical, such as returning primary powers to investigate maladministration to the Ombudsman. This role should never have been confusingly duplicated in the ICAC in the first place.
The challenge, however, is whether the ombudsman is ready for the kind of rigorous investigations into government failures that ICAC has excelled at. This includes a willingness to place responsibility on ministers and governments where necessary, not just examining bureaucratic performance.
Investigations by former ICAC Commissioner Bruce Lander into: transactions for the sale of state-owned land and major problems in state-run aged care a new standard of transparency and public accountability for the state.
But a much bigger problem is shifting the power to investigate official misconduct to the ombudsman, who is not suited to that office. It also deprives the ICAC of much of its actual function.
A flawed solution for a flawed body
Many flaws in the original SA model have been amplified by the reforms, warnings to other states and the proposed national body.
By limiting the ICAC solely to investigating criminal corruption, it is unable to lift the lid on many forms of non-criminal misconduct. This includes conflicts of interest, which are the slippery path to more serious corruption.
With questions about allegations of serious parliamentary misconduct still excellent, and a recent increase of reported police complaints in the state, ICAC’s ability to ensure misconduct does not turn into systemic corruption has become crucial.
The best state models enable their anti-corruption agencies to investigate allegations of serious or high-risk misconduct, in addition to demonstrable offenses – such as in NSW. This power is first and foremost the key to actively preventing corruption.
The Queensland Crime and Corruption Commission is another example of a state model that works this way. And while Victoria’s Independent Broad-based Anti-Corruption Commission focuses on criminal acts, she has the benefit of a broad, common-law “misconduct in public office” offense at her disposal.
The SA ICAC has also been the most secretive in the country. This is because it is modeled on federal crime commission law, not the ICAC models of other states. As such, it was never able to hold public hearings. The recent changes only make this secrecy worse.
Such as Transparency International/Griffith University’s recent report on: Australia’s National Integrity System shows, safeguards are always needed and a balance must always be struck in determining when anti-corruption agencies should use their public hearing powers – similar to royal commissions or coronal investigations.
But there is no doubt that such powers are necessary. And South Australia has none.
Lessons for the rest of Australia
South Australia has sent a big message to other Australian jurisdictions about what not especially for the proposed Federal Integrity Commission. Even in times of crisis and political pressure.
Recent proposals for the federal body have raised: similar concerns about too little transparency and too narrow focus on the rare and high threshold of criminal offences, at the expense of “grey zone” misconduct.
In the real world, there are no clear lines between criminal corruption and serious misconduct.
The federal purchase of land in Leppington for the West Sydney airport has raised both questions. While the Australian Federal Police has found no demonstrable crime in this controversial deal, the lack of an independent body to fully investigate the non-criminal errors involved and prevent recurrence leaves lingering, wider risks of corruption untouched.
The SA experience also reminds us that while anti-corruption agencies may be popular at first, they can quickly end up with few powerful friends or admirers.
The inconvenient truth is that politicians, like many others in the public service, are prone to cognitive dissonance. They know that public integrity is a desirable goal, but become acutely sensitive to their own vulnerabilities when anti-corruption agencies are established.
The lessons here are clear: a federal integrity commission with best practices should be nothing like the South Australian model and not be pushed back by the latest developments in NSW.
There can be no public trust in a body that wants to eradicate corruption when its work is done behind closed doors and with one hand tied behind its back.