Are anti-corruption commissions and their role about to come under new attack in Australia?
Today, New South Wales Premier Gladys Berejiklian resigned after the Independent Commission Against Corruption (ICAC) announced an official investigation into alleged conflicts of interest. This is certainly to restart the debate on the scope and powers of such bodies across the country.
The NSW ICAC is celebrated for exposing corruption in politics, including now-convicted former Labor ministers Eddie Obed and Ian Macdonald. But as the third Liberal premier to resign as a result of an ICAC inquiry since 1992, Berejiklian’s passing is almost certain to provoke a backlash.
The news comes after South Australia’s parliament last week passed sweeping amendments to its own independent Commission Against Corruption (ICAC), reducing its scope of operation and reducing its transparency.
Both events focus on the right balance of powers for all such bodies, especially the long-awaited Federal Integrity Commission, which has been operating for more than two years even after being promised by the Morrison government.
However, South Australia’s reforms specifically point to why a political backlash against these important agencies would be highly unwise.
What did South Australia do?
Far from inspiring public confidence, the South Australian reforms have sparked considerable controversy. The changes take away the ICAC’s core powers to investigate not only corruption, but malpractice and maladministration.
Commissioner Ann Vanstone has said the amendments “destroyed” her powers to investigate corruption. Another suite of changes jeopardizes its ability to publicly report on the progress or outcome of the investigation.
Some have said the change is largely an exercise in self-protection by state lawmakers. The lightning speed with which SA’s parliament passed laws only reinforces the public’s skepticism.
This is far more worrying than what happened in NSW in 2016, when Parliament restructured the state’s ICAC to add more commissioners and a full-time CEO, seriously changing the role of Commissioner Megan Latham. Latham resigned, returning to his seat on the NSW Supreme Court.
Some elements of South Australia’s reforms have logical meaning, such as returning the primary power to investigate maladministration to the Ombudsman. This role should not have been confusedly repeated in the ICAC in the first place.
The challenge, however, is whether the Ombudsman is prepared for a rigorous investigation into the outstanding government failures in the ICAC. This involves being prepared to delegate responsibility to ministers and governments, where necessary, rather than merely scrutinizing the performance of the bureaucracy.
Former ICAC Commissioner Bruce Lander’s investigation into the sale of state-owned land and major problems in state-run aged care set a new standard of transparency and public accountability for the state.
But a bigger problem is shifting the power to investigate official misconduct to the Ombudsman, which is not a fit for that office. It also strips the ICAC of a large part of its proper function.
Read more: The case of ‘sports rots’ shows the need for a proper federal ICAC – with the teeth
A flawed fix for a flawed body
Many of the flaws in the original SA model have been amplified by reforms, warnings to other states, and a proposed national body.
Limiting the ICAC solely to investigating criminal corruption leaves it unable to cover up many forms of non-criminal misconduct. This includes conflicts of interest, which are a slippery slope to catching more serious corruption.
The investigation into allegations of serious parliamentary misconduct is still pending, and with the recent increase in police complaints reported in the state, the ICAC’s ability to ensure misconduct does not escalate into systemic corruption.
The best state models allow their anti-corruption bodies to investigate allegations of serious or high-risk misconduct, as well as those with proven criminal offenses in NSW. This power is key to proactively preventing corruption in the first place.
Queensland’s Crime and Corruption Commission is another example of a state model that works this way. And even though Victoria’s independent Broad-based Anti-Corruption Commission focuses on criminal acts, it has the advantage of a broader, common-law “misconduct in public office” offense at its disposal.
SA ICAC has also been the most secretive in the country. This is because it was based on Federal Crime Commission legislation, not the ICAC model of other states. So he could never hold any public hearing. Recent amendments only make this secrecy worse.
As a recent Transparency International/Griffith University report on Australia’s national integrity system shows, safeguards are always needed, and there is always a balance in determining whether anti-corruption bodies should have their own public hearing powers. When to use – Inquiries similar to royal commissions or coronations.
But there is no question, such powers are needed. And South Australia has none.
Read more: Brand Gladys: How ICAC revelations hurt Berejiklian’s image of ‘school captain’
Lessons for the rest of Australia
South Australia has given other Australian jurisdictions a big hint on what No To do so, specifically for the proposed Federal Integrity Commission. Even in times of crisis and political pressure.
Recent proposals from the federal body have raised similar concerns about too little transparency and a focus on the rare and high threshold of criminal offenses at the cost of “grey area” misconduct.
In the real world, there is no bright line between criminal corruption and serious misconduct.
Read more: As the government drags its heels, a better model for the Federal Integrity Commission has emerged
The federal purchase of land in Leppington for Western Sydney Airport has raised questions on both. While the Australian Federal Police has found no proven criminality in this controversial deal, the ongoing, widespread risks of corruption remain unresolved due to the lack of an independent body to fully investigate and prevent the recurrence of non-criminal failures.
SA’s experience is also a reminder that even though anti-corruption agencies are initially popular, they can quickly end up with few powerful friends or fans.
The inconvenient truth is that politicians, like many others in public service, suffer from cognitive dissonance. They know that public integrity is a desirable goal, but when anti-corruption bodies are enforced they become overly sensitive to their vulnerabilities.
The lessons here are clear: a best practice Federal Integrity Commission should look nothing like the South Australian model, and should not hold back from the latest developments in NSW.
A body aimed at rooting out corruption cannot have public confidence if its work is done behind closed doors, and one hand is tied behind its back.