Federal Integrity Commission background talks

Labor is in talks with Peter Dutton over the looming Federal Integrity Commission

PM Anthony Albanese has the numbers to do it without Peter Dutton.

Why talk to him?

Reports that Labor is in talks with Peter Dutton over the looming Federal Integrity Commission laws have spread alarm Anthony Albanese might walk back on his pledge for a credible anti-corruption body. Callum Foote reports on the timing, the critical detail, the delays and the latest scare.

Call it what you like: a Federal ICAC, a Commonwealth Integrity Commission or Bloody Well About Time, the introduction of an anti-corruption body to root out the dodgy business which has plagued Australian federal politics for years, and increasingly so, was one of the major issues at the 2022 election.

The Coalition had promised one but failed to deliver. Labor made it a core promise. Corruption has bedevilled trust in our democracy, leadership, and our public institutions. Australians want political corruption exposed and rooted out. They want honesty in politics and penalties for corrupt politicians and bureaucrats.

And as it was Labor’s promise to implement an integrity commission, a body that has long been championed by MWM, news that the government is in talks with Opposition Leader Peter Dutton about a NACC (National Anti-Corruption Commission) set social media alight late yesterday.

The story in the Liberal media out AFR, “Libs could cut deal with Labor on integrity commission”, was quickly followed by a barrage of concerned and outraged tweets by Greens and independent politicians and their supporters. PM Anthony Albanese has the numbers to do it without Peter Dutton. Why talk to him?

The fears are probably overblown. It is no particular surprise that the government is talking to Dutton. Yet, although Dutton has expressed support for a NACC (even the robust proposal by independent MP Helen Haines last year), it would be surprising if the Opposition leader did not try to extract some teeth from any legislation which Attorney General Mark Dreyfus might put up.

After 9 years of sketchy Coalition government it is the Liberals and Nationals who have the most to fear.

For his part, Albanese can push through the laws with the support of the Greens and the cross-bench. He doesn’t need a Coalition vote. Hence the fear that any input by the Coalition, whose members will no doubt be put under scrutiny by a NACC, will water down the outcome. It remains to be seen. The devil, as they say, will absolutely be in the detail. The proposal by former A-G Christian Porter was to hold hearing in camera, in secret. It would have been completely useless.

Delays, what delays?

Even before the Dutton scare, there had been concern about delays to the legislation, and indeed what it might bring; the detail that is: it’s funding, its powers, its methods of referral, the independence of its officers, whether hearings would be public, and what constituted corruption (eg, is pork barreling corrupt?).

The promise to pass the legislation stands, but as the political folklore goes, ”events, dear boy, events”, have a habit of getting in the way. Australian politics stopped for the death of Queen Elizabeth, our head of state for 70 years. And with the shutdown came a pause in the creation of the body designed to fight influence peddling, sweetheart deals and pork-barrelling in the federal sphere.

But nailing down the structure of the commission is now unlikely this year. And despite Labor’s promises that the legislation will proceed this year, it is unlikely that any federal integrity body will be established in the three remaining weeks of parliament, which will also be dominated by the Budget on October 25.

In the meantime MWM has taken the opportunity to ask several integrity experts and independent MPs who campaigned on an integrity platform to ask what Australians should be looking out for when Albanese finally reveals his party’s federal ICAC proposal.

Ensuring independence

Crucial to the independence of the integrity body for independent MP Allegra Spender is that commissioners are independent and not political appointees as we have seen in other government bodies such as the Administration Appeals Tribunal or various energy regulators.

“It is crucial that the commission and those appointed to it are independent from government,” Spender, the MP for Wentworth, said. “We cannot continue with the partisan appointments process of the past, where the prime minister’s ‘captain’s pick’ for commissioner can be rubber-stamped by a government-dominated parliamentary. The cross-bench has a vital role to play as part of the committee, ensuring that government appointees are not simply waved through without challenge, and equally that an obstructionist opposition cannot hold up the commission’s important work.”

However, alongside political independence in terms of who is running the show, secure funding is a major area of concern for those looking for an independent commission.

Clancy Moore, CEO of Transparency International Australia, says that “We are looking forward to seeing the National Anti-Corruption Commission legislation. We believe that if done right, it will not only stop corruption, but also prevent corruption, raise the bar on integrity and be a best practice model for all jurisdictions.”

Moore says that “we want to see a commission that is independent. This means independent multi-year funding allocations by parliament as well as cross-party parliamentary oversight.”

Kate Griffiths, Program Director at Melbourne-based think-tank the Grattan Institute, also says that funding is in the top four things she is looking out for in the new commission. “Has it been properly resourced?” Griffiths asks. “Funding of at least $100m per year will be needed”.

Wide-ranging powers to investigate

Beyond independence, there is a clear expert consensus that the commission must have the appropriate powers to do its job properly.

For Spender, this means that:

the commission must have the power to tackle serious or systemic corruption. This means a commission that has power to launch investigations, to investigate third parties, to hold public hearings where it is necessary to do so

Moore emphasised other research which has been conducted by Transparency International Australia which calls for any independent commission to have “the strong investigative powers of a royal commission, including the ability to hold public hearings.”

Also important is whether the new legislation will change the definition of corruption, permitting the commission to investigate a wider range of dodgy activities apart from the simple quid pro quo.

“We will be watching closely the definition of corruption in the new legislation,” Moore says. “It’s important that there be a broad definition of corruption so that the commission is empowered to look at grey areas of corruption and misconduct, and serious or systemic corruption issues.”

Investigative scope is also very important to Griffiths, who asks are “investigations limited to criminal conduct or is the commission able to investigate matters of serious and systemic corruption that may not meet the criminal bar? Criminal offences related to misuse of public office are narrowly defined and tend to be very difficult to prove as they often require proving intentions.”

Protection for whistleblowers

Another area of expert consensus for what will be necessary in the new legislation is the importance of improved whistleblower protections.

According to Moore, “We also want to see a clear commitment from the government to strengthen whistleblower protections. We strongly recommend that the new National Anti-Corruption Commission have a whistleblower protection commissioner – a role which can provide a one-stop-shop for whistleblower protection for the federal public and private sector.”

Spender also called for the new legislation “to provide strong protection for whistleblowers and innocent witnesses alike.”

Australia has a whistleblower protection problem. From the extended persecution of Witness K in the East Timor bugging scandal to ATO tax whistleblower Richard Boyle who faced 24 charges in the South Australian District Court for exposing the ATO’s use of garnishee notices to pursue debts.

This is something that Attorney-General Mark Dreyfus is looking into, particularly in relation to the Public Interest Disclosure, a review of which the Coalition government put aside in 2016.

“Whether or not it goes to a whistleblower protection commissioner is something that the government is still considering,” Dreyfus said earlier this month.

Sunlight is the best disinfectant

A final important consideration to look out for in Labor’s proposal is whether the commission will hold public hearings. For Griffiths, this is an important consideration, and Australians should ask themselves whether the commission is public facing. “Will it accept tips directly from the public, journalists, whistleblowers, and others? Will it have the power to hold public hearings (even if the threshold for these hearings is high)? And will it report publicly on its findings?”

The Centre for Public Integrity on Friday pointed to the fact the NSW Independent Commission Against Corruption (ICAC) had held only 42 public inquiries despite nearly 1000 private examinations between 2012 and 2020.

“Sunlight is the best disinfectant,” director Geoffrey Watson said. “Public hearings expose corruption, and many investigations would not be successful without them.”

Former NSW ICAC commissioner David Ipp said the state watchdog’s work cannot be done without public hearings.

Stephen O’Bryan, former head of Victoria’s Independent Broad-based Anti-corruption Commission (IBAC), has said public hearings were vital and an “invaluable tool” for highlighting corruption and warning against it.

Now, waiting for the parliamentary debate to begin when Albanese unveils Labor’s proposed ICAC legislation Moore warns that Australians must be on guard for vested interests to try and undermine these efforts.

Transparency International’s global experience knows that too often great anti-corruption reforms get watered down over the years. We need to future proof Australia’s National Anti-Corruption Commission against any risk of being watered down by future governments by ensuring it is independent and its resourcing is shielded from politics

This article was originally published by Michael West Media and written by Callum Foote

Callum Foote is a journalist and Revolving Doors editor for Michael West Media. He has studied the impact of undue corporate influence over Australian policy decisions and the impact this has on popular interests.

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