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Anti-corruption models

By John Haly and Dr Martha Knox-Haly  

Transparency International’s official assessment released in January 2019, indicated that corruption grew in Australia.

During the current term of the Federal Coalition Government, Australia fell from 7th place to 13th place in 2015 and has not shifted since on Transparency International’s index. This relative stability is illusory. The indexed gap United Kingdom (80) and Austria (76) is the widest available for the top 20 least corrupt countries. The width of this gap has obscured Australia’s actual fall from 79 to 77. The latest review by TI was completed by September 2018, after which time new Federal Government scandals emerged:

  • Paladin corruption allegations,
  • Royal Commission findings on Banks,
  • No charges laid over questionable tip-offs on AFP’s union raid from Michaelia Cash’s office.
  • Northern Territory’s public service corruption charges

Federal ICAC proposals

This prompting renewed calls from the media and public for a federal ICAC to be established. Previously submitted by Sen Bob Brown in 2010, Adam Brant in 2012 & 2017, Christine Milne in 2013 and lately Cathy McGowan in 2018.  None of which have come to fruition.

In early 2018, the Australia Institute convened a panel of experts on the subject of the different forms of anti-corruption commissions, generating diverse political and legal reactions. The report’s recommendations remain unenacted despite growing corruption in our governance.

Apart from Tony Abbot begging the government not to create an integrity commission, both major political parties were at least considering such a commission. The Federal Labour party has promised to implement an anti-corruption agency based on the Australia Institute research. In the meantime, Cathy McGowen delivered her National Integrity Commission (NIC) legislation in the last week of November and the second bill for National Integrity Bill in early December. Despite a motion in support in Parliament, it was referred to the Senate Legal and Constitutional Affairs Committee for a report due April 5th. Morrison was initially dismissing it as a “fringe issue”, rejected the McGowen model, offering the coalition’s version, which was neither retrospective, public nor able to make findings of corruption.

The debate has since become what model of Anti-corruption enforcement might actually be useful and agreed upon federally.

Corruption fight as a threat to democracy

How we structure and manage anticorruption commissions, matters.

Transparency International’s anti-corruption conference in Denmark in 2018 made a predictive and correct analysis of Brazil’s presidential elections based on what many saw as the failure of anti-corruption measures.  I attended a workshop in Copenhagen titled “The fight against corruption as a threat to democracy” predominately concerned with achieving increased transparency without political radicalisation. Jair Bolsonaros rise to power was a cautionary example.

The workshop concluded that an improperly managed anti-corruption body could be both ineffective and harmful to civil society, engendering populist movements and anti-establishment radicalism as manifested in Brazil. Corruption prevention by itself would not strengthen democracy and scandals could lead to:

  1. A power vacuum to be filled by even worse governance,
  2. Fuel cynicism towards politics,
  3. Entrench the idea that corruption is inevitable.

So we need to ask of any commission:

  • What should the characteristics of it be?
  • Is it a court or an investigative body
  • Does it secure prosecutions?
  • Should it raise community expectations of a transparent clean society?
  • To whom does it report?
  • Who is covered by this legislation?

In Singapore, the CPIB reports directly to the Prime Minister’s office, but in the era of Donald Trump, is a direct line to the top a good idea?  Does it cover civilian public servants, the private sector, the police? Should elected officials, including our Prime Minister, to be classed as public servants and answerable to this commission?

At this point, we come to the conflict that occurs between lawyers versus political/civil objectives. Legal experts have argued that public hearings risk reputational damage, but interestingly, even the Australian’s Mark Coultan noted that “ICAC routinely conducts priv­ate hearings before proceeding to a public inquiry.”  He went on to remind us that:

Mr Sturgess, head of the cab­inet office in the Greiner government when ICAC was established, warned that making all hearings private would radically alter the nature of the organisation.

When you consider that it was Ian Macdonald, found guilty of corruption, who said making hearings private was long overdue, it may be mindful to ask who seeks to gain the most from secret hearings? A lack of transparency will always hide corruption.

Lawyers also express concerns around the lack of the usual rules of evidence that exist around admissibility of evidence to these commissions.  For example, lack of available admissible evidence was why in the case of Bankstown and Strathfield councils in November of 2007 resulted in findings of corrupt conduct, but did not result in a referral to the Director of Public Prosecutions. This case essentially represented a tussle between criminal standards of evidence versus a civil good.

Conversely, it has been argued that public hearings play an essential role in engaging the public in democratic processes, and this is clear through regular community surveys. Transparency builds confidence in public institutions and giving whistleblowers a line of sight between their actions and consequences. Whistleblower Rebecca Connor’s mining corruption allegations could have been buried with parliamentary debate and committees. Although, parliamentary committees have upheld the principle of public hearings on several occasions. Assertions of unfair reputational damage overlook the detailed pre-investigative processes that preceded public hearings.

NSW ICAC regularly receives approval levels above 85% in community surveys. In states where hearings are conducted in secrecy such as Victoria’s IBAC or South Australia’s ICAC, there is little community awareness, and consequently has no role in building community confidence. The vast majority of the public perceives most, if not all, politicians are corrupt.

Positive perceptions of ICAC for the people of NSW over time.

The next important consideration is that operational legislation specifies the right to investigate, recommend charges, present reports to parliament, and pursue parliamentarians. The early successes of NSW ICAC from 1989 to 1993, and then later from 2011 to 2015 were facilitated by strong political will and commitment to transparency. A commission thrives or withers depending on the level of political favour. The first few years of an agency being established are marked by many legal challenges to its jurisdiction. Therefore, a dynamically supportive legislature is a must in addressing weaknesses exposed by legal challenges.

Does the commission have funding for a dedicated unit to provide advice around legislative reforms? One of the reasons for NSW ICAC’s success under Ian Temby QC was the existence of such a department which was able to provide advice on matters of legislative reform. [NSW ICAC Annual report 1991 pg 66]  There also needs to be a mechanism for independent evaluation of the ICAC’s budgetary needs, as investigations and public hearings are costly.

McGowan or Morrison’s model?

So how do the respective models offered by McGowan versus Morrison stack up? On 13th December 2018, Morrison announced a Commonwealth Integrity Commissioner (CIC), who would have oversight over a Law Enforcement Integrity Commissioner and a Public Sector Integrity Commissioner. The new commission will have the power to investigate politicians and their staff but is not allowed to act on complaints raised by the public or reported in the media. It will not have public hearings and is designed to respond to allegations of criminal conduct. Criminal conduct represents a much narrower standard than what has been applicable for other state-level anti-corruption agencies, which had a broad mandate of investigating misconduct. Grey instances such as Susan Ley’s use of tax-payer funded travel to coincidentally inspect an investment property; Barnaby Joyce created a position for his partner or Peter Dutton’s profiting from Childcare facilities, or the lack of tendering for the Great Barrier Reef Marine Park Authority funding scandal would not be referred. Can the status quo be challenged as we sanction misconduct by directing it to internal review?

The CIC cannot make findings of corruption, misconduct or criminal matters. This stands in contrast to NSW ICAC which is allowed to make findings of contempt, corrupt conduct and report on recommendations for criminal charges.

Funding is estimated to be between $100 to $125 million and is considered inadequate. There is a proposal around mandatory reporting of corrupt conduct by public servants, but this does not include mandatory reporting by parliamentarians. It is not clear whom this commission will report to, or whether it would present publicly available reports to parliament. Not surprisingly, former NSW ICAC Commissioner David Ipp described the CIC as the “kind of integrity commission that you would have when you don’t want to have an integrity commission.

This article is based on the research by Dr Martha Knox-Haly in researchgate.

Dr Martha Knox-Haly is a clinical and organisational psychologist, researcher and author with more than twenty years experience in her profession and a private practice in Randwick, Sydney.

Her doctoral research (the fifth of six degrees to date) was in the area of political and economic history, as was her most recent book, “Workplace Stress versus Outcomes” which followed a previous publication “How to Stop Your Workplace Going Pear Shaped” which is a distillation of the author’s experience as a researcher, consultant, organisational psychologist. The latest book focused on the relationship between political and economic policies and quality of life indicators for employees and the general public. Her recent publications on Research gate include “ICAC and NSW Governments (1988-2016): Fighting Corruption in the Neoliberal State”.

Audio file from the conference:

This article was originally published on Australia Awaken – Ignite your Torches.

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14 comments

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  1. corvus boreus

    A timely and relevant article about an issue of broad concern.

    Polls consistently show around 90-95% public support for a federal ‘ ICAC’, I think because most people, whether predominantly progressive or conservative in their outlook, understand that corruption dilutes and perverts any potential benefits in policy enactment/implementation, added to which the general perception of ‘pollies’ being rotten is near universal.
    Of course despite such widespread support, active measures to curtail federal corruption are constantly stymied by entrenched members/parties seeking to protect their ‘extra-curricular entitlements’, aided by lobbying from the corporate interests that benefit from ‘backdoor opportunities’.

    The coalition resistance to measures of transparency and accountability are completely unsurprising, they seem to revel in the mutual benefits of corporate cronyism, and it is equally unsurprising that the reaction of our ad-man PM to a forcing of the issue was to offer a glossy box containing nothing of substance (Commonwealth ‘Integrity’ Commission) .
    Morrison rates public concern over political corruption as a ‘ fringe issue’, believing that everyday Australians are more interested in crucial everyday concerns, like the location of our embassy to Israel.

    I will admit to serious disappointments in Labor’s responses over the years, both in their history of voting down of all tabled proposals, and in weasel words uttered on the subject (eg ‘willing to work in a bipartisan fashion to defend against the ‘perception’ of corruption’).
    This situation has recently improved somewhat, with the ALP admitting the necessity and speechifying their support (National ‘Integrity’ Commission), but it remains an election promise rather than solid policy, and the ALP have failed to capitalise on either the clear public support or the shifted balance of power in parliament to force the issue.
    I hope they capitalise on what is clearly a resonant issue and articulate some strong policy proposals with amplified clarity as the federal election approaches.

    Ps Notable that both the ALP and Lib-Nat proposals studiously avoid use of the word ‘corruption’, preferring to emphasise ‘integrity’.
    accentuate the positive, eliminate the negative…

  2. Kaye Lee

    But what teeth do these organisations really have?

    Apparently what Arthur Sinodinis did was just fine and dandy because he “can’t recall”. And for all those exposures about fund-raising bodies diverting illegal donations, no-one was prosecuted. And, despite findings against Joe Tripodi in relation to multiple issues, “The DPP is yet to provide advice”. Last month, five Court of Criminal Appeal judges quashed Ian MacDonald’s conviction and ordered a new trial.

    Aside from which, most of the things we consider corrupt or unethical are within the rules. We can do a limited tender process (read no tender) and give money to whoever we want and we have a whole host of phrases like commercial-in-confidence or national security to stop any scrutiny. We can appoint our mates to whatever position we want without any merit process. We can claim expenses to pay for whatever we want.

  3. totaram

    The standard coalition/neoliberal technique for dealing with any kind of regulatory oversight is to cut the funding for the body. How do we prevent that? It would seem that would have to be written into the constitution, so a referendum is required.

  4. Alcibiades

    totaram
    Absolutely. Again & again the method has been to cripple Commissions by funding cuts to the bone, requiring significant staff cuts to survive in order to therefore attempt to comply with their legislative obligations, cutting/cancelling investigations & destroying staff morale, further exodus of professional expertise. Entities under literal financial & psychological siege.

    The prime example & model followed ever since for this was the almost destruction of the QLD Criminal Justice Commission(CJC) when the Lib/Nats first came back into government/power following the Fitzgerald/Joh days..

    The public support is there, a referendum to enact a Federal Corruption Commission that guarantees funding, resources & independence outside of Parliaments purview is critical. Appointments & oversight by a multi-party parliamentary committee is essential, yet, crucially, all decisions of such must be by super-majority, same for parliament itself, or the simple majority party of any given government can cripple said commission.

    Must have jurisdiction over Parliament & all Federal departments, authorities & agencies, as well as ability to follow the money, anywhere Commonwealth funds are expended & where authority/influence is exercised.

    Re Brazils Balisaro & Lawfare … & corporate MSM censorship/omission …

    On March 18, on his first official visit to the United States far-right Brazilian President Jair Bolsonaro visited the Headquarters of the Central Intelligence Agency(First). It was outside the President’s official agenda. None of his predecessors had visited the agency, and indeed very few foreign heads of state ever have. The scandal briefly engulfed coverage of his trip on its first day in the Brazilian media, overshadowing planned official events.

    The significance of his CIA visit, to Brazil’s sovereignty and democracy, should be obvious to any observer, but was amplified by the identity of his companion, the US-trained Inquisitor-Judge, now appointed Bolsonaro’s own Justice Minister Sérgio Moro, whose controversial jailing of Lula da Silva, who led all polling scenarios, effectively handed the presidential election to the neofascist candidate. The visit came a week after the U.S. Department of Justice’s R$2.5bn kickback to the Lava Jato taskforce with which they had collaborated informally, and in breach of Brazil’s constitution, on the prosecution of former president Lula, who has been the most high profile scalp in a continent-wide lawfare strategy…

  5. Andrew Chambers

    A Couple of comments.

    We do not live in a Democracy. Please can I ask all authors to take more care in their use of the word when describing our political system it must NECESSARILY be qualified by such words as “Representative” or “Parliamentary”. We live in an age where technology and public / social engagement are enabling a return to Democracy – being the ability for all those enfranchised with in a constituency to engage in the development, deliberation and finally a vote on any Issue.
    The fundamental Issue confronting us is systemic, entrenched, corruption at the heart of politics, the media and our economy. It is made possible by secrecy, intimidation and an absolute unchallengeable tenancy in the seat of power for the term mandated by a popular vote (that one nod to Democracy). We elect party based representatives, not with a contracted policy platform, but a political promise, such as the implementation of “an anti corruption body” with little detail and minimal accountability for what is implemented.
    The answer is, as it was in the beginning, take away the concentration of power held by too few men through a Democracy that affords all of us the opportunity to engage and make the change. Or do you all wish to continue the fantasy and prey it turns out OK?

  6. Phil Gorman

    Thank you for your clear exposition on a matter of the utmost national importance.

    Every year since 2010 The Greens have introduced legislation to establish a national anti corruption body; to no avail. In response to this and public pressure over the years various Attorneys General from both mjor parties have loudly pointed out that the Australian Government had numerous regulatory and legal agencies to ensure the integrity of the parliament and the corporations active in Australia. They all reasured the public that the system was fine and no further action was required, least of all an expensive and burdonsom national integrity commission.

    In 2016 I made a submission to the Senate Select Committee on the Establishment of National Integrity Commission. As far as I am aware the committee is no longer active. It was only one of a number of shelved enquiries since 2000.

    The template for my submission was Transparency International’s 2012 Ten-Point Integrity Plan for the Australian Government.

  7. David Bruce

    Our original Commonwealth of Australia constitution had built in safeguards to limit the acts of corruption, election tampering and other unlawful acts.

    The Australia Act 1986 has removed these safeguards, with no lawful replacement. The politicians now act under the constraints of business law!

  8. Andy56

    You want to stop corruption , ah? First step is to stop discressionary departmental pork barreling.
    Second, all parliamentarians should be on the minmum wage. No point paying monkeys more nuts than they can eat. Third, a ” nazi” expenses officer who is dead serious about ” allowed” expenses.
    Fourth, no government advertising allowed. All media will be forced to give all parties x number of hrs per week at a set time ,free .That way no need for electoral allowances per vote. No way of gaming the system ie no more gravey train for pauleene. A strong democracy demands responsible leaders , not a bunch of individual arseholes. That includes media.

  9. Andy56

    To establish an icac, i think the first thing you need to do is establish what corruption is.
    For example, Setting up a remuneration tribunal where the people sitting are wealthy and well established to start with is corruption in my book. it just sets up the gravy train.
    For example, a helicopter ride to a polo game linked to a 5 min meeting is corruption.
    For example, a hospital media assalt linked to a party meeting is corruption.
    For example, a whole plane full ministers flown to christmas island for two hrs at great expense is corruption.
    If you or I took advantage of our employer like that, we would be shown the door.
    Government is not a business so has no equivalency. Democracy is supposed to run on different principles and so has different expectations.

  10. Joseph Carli

    A short cut from an article I hope to post in the near future…It gives clue to the source of corruption that would evolve into a complete across the board corruption of the middle classes of our nation…It WILL HAVE to be dealt with!

    From : “Private wealth – Private edication – Public authority”.

    ” So THIS was the sort of person that later desired to start a “Propriety School” for the education of the children of his peers in the colony…for all the like-minded, like attitude, like cunning members of his own class…a private school that would inculcate the intentions of gaining, securing and protecting their ill-gotten wealth . The fore-runner of those public-funded, private screened, profiteering poltroons of a future white-collar criminal class, that now holds by far majority major influence in our institutions of law-making, judiciary, corporate boards, government political appointments, politicians themselves and higher echelon authorities in the land….a corruption complete of every institution of governance by a coterie of like-minded philosophied religious/capitalist indoctrinated “consciousness of kind” pusillanimous buffoons that have steered this nation and a few others in the West to the situation we find ourselves in now…teetering on the verge of economic, physical and environmental breakdown…AND STILL having no desire or perhaps no idea of which way to go from here except to encourage feral bogan elements in our midst to clamour and cry for a new Fascist order to protect and secure those ill-gotten gains.”

  11. Joseph Carli

    “Edication”…ha ha…appropriate typo!!….Let’s leave it there..

  12. corvus boreus

    Beyond external measures to combat corruption, there are also the voluntary measures that people/parties can undertake to restore some measure of public trust in the political process.
    The benchmark example would be the conduct of independent Mayor/MLA/HoR politician Ted Mack, who displayed complete transparency in his dealings, and made a point of eschewing the gilded trappings and over-generous entitlements of office.
    Mack not only opened all council dealings to public scrutiny, he traded in the Mayoral merc to buy community buses, and, in state and federal office, resigned his position a couple of days before qualifying for permanent pension.

    I contrast this not only with the behaviour of the coalition grifters (who I would never consider voting for) but also with the dealings of some Labor operators (a brand I do sometimes buy).

    For example, in 2017 W Shorten was conducting opaque backroom factional deals with Andrew Landeryou, who, in addition to being a moral/financial bankrupt and a slanderous blogger, had just previously been arrested, tried and convicted of vandalism on behalf of a Labor candidate (Michael Danby), with the ironic twist being that ‘powerbroker’ Landeryou is not even a member of the ALP (mainly due to party concerns over his prior conduct).
    https://www.smh.com.au/politics/federal/why-alp-backbencher-kimberley-kitching-may-become-a-household-name-20180301-p4z29q.html
    Shorten’s shifty shuffling around the subject of a federal ICAC had already made me question his commitment to integrity, and his continued voluntary elevation of such demonstrably dubious ‘mates’ is, for me, an indication that he will happily compromise ethical credibilty in favour of political expedience/opportunity.

    External oversight by an independent anti-corruption body can be a valuable tool in helping to curb the worst excesses of the corruption that occurs in and around politics, but public confidence would be better restored if our senior elected representatives made a conscious effort not to behave like shonks.

  13. Joseph Carli

    political corruption in some form or other is a “given”…what has to be done is to drive it so deep underground that it does not visibly alter social outcomes…the ubiquitous brown-paper bag will always be amongst us…it is the legisaltional integrity that MUST be solid…and SEEN to be incorruptible. and to achieve that there must be social class integrity…it is THAT part that is missing from governance at the moment.

  14. Diannaart

    As Totaram noted and Alcibiades expanded upon, the regulations are there, but toothless due to systematic reduction in funding and red tape cuts.

    While the LNP are brazen with their deregulation agenda, Labor has contributed by endorsing much of the LNP agenda.

    Both sides are guilty, the palid difference being the LNP boast of leaving the bloodsuckers free to suck is somehow good for everyone, while Labor looks the other way.

    Will Bill face the reality of the erosion of Australia’s democracy if/when he wins election? And give some teeth to responsible governance? Or is Bill yet another wannabe who is more about the destination and less about actually doing the work?

    While I believe Rudd started out with good intentions, his ego let him become a tool for vested interests. Gillard was never given much opportunity, her achievements were in spite of many obstacles including already entrenched corruption between politicians and the excessively wealthy as well as the corruption inherent in bigotry.

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