How does the government’s long-awaited anti-corruption bill rate? An integrity expert breaks it down

A J Brown, Griffith University

The prospects of Australia securing a strong federal anti-corruption agency have taken a huge leap forward, with introduction of the Albanese government’s much awaited National Anti-Corruption Commission bill into federal parliament.

It’s 17 years since Transparency International Australia first recommended this reform, and five years since a Senate Select Committee agreed unanimously it was time to give it serious consideration.

While the Greens had taken the lead and introduced bills for an integrity commission for over a decade, it wasn’t until Labor promised one in January 2018, and Independent Cathy McGowan introduced one into a hung parliament in November that year, that the then Coalition government was forced to act. However it was November 2020 before the Coalition revealed a much-criticised draft bill, which was never introduced.

Ultimately, the Morrison government’s failure to deliver a credible proposal was instrumental in its defeat in May 2022. But it also paved the way for a commission that can be not just strong and effective, but enduring, with the Coalition Opposition now signalling strongly it wants to regain credibility by supporting Labor’s vastly superior model.

In coming weeks, a joint select committee of the parliament will take submissions and review the bill, and recommend any improvements by November 10.

It will be a crucial process. The government is close to delivering on its promise to create a state-of-the-art anti-corruption body – but isn’t quite there yet.

Scope of corruption

The first strength of the proposed commission lies in the scope of corruption that it can investigate.

The Labor plan goes broader than the Morrison model, which for politicians and most of the public sector was limited to criminal offences – not “grey area” corruption where most of the scandals and problems actually lie.

Instead, it covers any conduct that could adversely affect, directly or indirectly, the honest and impartial exercise of a public official’s powers or performance of their functions. It’s a definition that’s simpler, more flexible, and less legalistic or complicated than most State definitions.

In a win for democracy, there’s almost no difference in treatment between politicians and anyone else. And to drive a stronger integrity system, the Commission has to be notified of all serious or systemic corruption issues arising across federal government, and can receive and assess information from any source about any corruption issue – even if only minor – to ensure it’s dealt with.

The strong investigative powers of the Commission itself will be saved for those corruption issues it independently assesses to be serious or systemic. But given any significant corruption issue is, by definition, serious in nature, this should present no bar to the Commission investigating what it needs to.

As flagged by Attorney-General Mark Dreyfus on Monday, not only public officials but “any person”, including private individuals or businesses that seek to corrupt public decision-making, can be in the frame.

Prevention, resources and independence

Other strengths of the bill include a clear function to drive corruption prevention and education initiatives across the Commonwealth, including holding public inquiries into corruption risks and general integrity issues. This is one of the few features preserved and extended on from the Coalition’s model.

After some early, inadequate estimates, Labor has now backed the Commission with more serious resources. It’s lifting the Coalition’s proposed annual budget of $42 million to a promised $65.5 million annually.

Together with other measures, flagged or underway, these features make the proposed National Anti-Corruption Commission by far the biggest integrity reform in Australian federal government for at least 40 years.

So, where are the wrinkles?

Against all these strengths, questions still surround whether:

• the budget of the Commission will be sufficiently independent and guaranteed
• the parliamentary committee overseeing the appointment and performance of the commission is constituted in a genuinely durable, multi-partisan fashion
• and whether the proposed inspector of the Commission’s powers has wide enough functions to properly fulfil that job.

But the two biggest problems relate to public hearings, and the major gap in the federal integrity system which remains unfilled: effective whistleblower protections.

The new bill fulfils a promise to empower the commission to hold public hearings where necessary and in the public interest, like a royal commission.

However, the Albanese government’s model has unexpectedly fallen short in proposing public hearings be available only in “exceptional circumstances”.

This limit wasn’t part of the “design principles” Labor took to the election. Nor is it an accurate description of when such powers should be, and are used successfully by royal commissions and standing state anti-corruption bodies. It has proved a cumbersome barrier in the only state where it applies (Victoria).

There are ways to further ensure public hearings are only used where appropriate, to address any fears of a “kangaroo court” or “show trials”.

But our joint research between Griffith University and Transparency International Australia makes it plain: “exceptional circumstances” is unhelpful and potentially dangerous as a test for that purpose.

Finally, the government gave an election pledge that its package would be “extremely similar” to the integrity commission models previously introduced by the Greens, McGowan and her successor, Dr Helen Haines.

However the bill differs substantially from Haines’ model by not including a whistleblowing commissioner, identified by past parliamentary inquiries as also central to a strengthened integrity system.

Despite recently telling parliament the government was taking the idea of a whistleblower protection authority “very seriously indeed”, it got no mention in the Attorney-General’s speech introducing the new commission.

The government has committed to fix overdue, minor problems with federal public sector whistleblowing laws. But it’s yet to outline plans to address more serious reforms to plug this gap, including an agency to actually enforce protections and make them real.

It remains to be seen whether all these historic integrity reforms, when complete, will be enough to reverse Australia’s decade-long slide on Transparency International’s Corruption Perceptions Index.

However, there can be no doubt Australia is set to take at least one huge step forward.

A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The day has finally arrived: an Australian government today made good on its commitment to legislate an integrity watchdog, the National Anti-Corruption Commission (NACC). But there is one major bone of contention … secrecy. Callum Foote reports on the spectre of a Secret National Anti-Corruption Commission (SNACC).

The actual legislation is yet to be revealed; the devil in the detail if you like, and there will be much in that. Yet, Attorney-General Mark Dreyfus has unveiled the broad remit for Australia’s National Anti-Corruption Commission (NACC). In a speech to parliament and follow-up media release Labor detailed the broad points of its proposed anti-corruption body and for a party that ran on an integrity campaign, the plans appear to tick all the boxes, save one.

With only one sitting day left to go this week the legislation in all its detail is expected tomorrow. While PM Anthony Albanese and federal Labor must be congratulated on coming good on an election promise to deliver a powerful and independent anti-corruption commission, something the previous government promised but failed to achieve, the overview provided by the Prime Minister and Attorney-General has revealed some prospective shortcomings.

Yes, it has broad powers, it is independent, retrospective: it promises procedural fairness and oversight, and it is reasonably well funded at $232m over four years. Yet, hearings will be held in private, at least most of them.

To quote the wording of the PM’s press release: “Public hearings: The Commission will have the power to hold public hearings in exceptional circumstances and where it is in the public interest to do so”.

What does a lawyer deem to be “exceptional circumstances”, or the “public interest” for that matter. For it may have to be both.

Public hearings

Helen Haines, the independent member for Indi, has been an outspoken advocate for the necessity of public hearings in any new federal anti-corruption body.

“For this commission to truly be the best it can be and have the trust of the Australian people, we need time to debate these issues in the public sphere, through the committee process,’’ Haines said earlier this month.

‘’This is about setting the commission up for success, not compromising and getting it wrong. It’s a once-in-a-generation opportunity to get the best integrity model possible and the most important thing is that parliament works constructively to get it right.”

Haines brought forward her own federal anti-corruption commission legislation last year.

However, it appears as though Labor has taken a decided step back from the transparency wanted by integrity experts and politicians.

Haines told reporters at a doorstop today that this was a particular area of interest for her.

The high threshold, that both there be exceptional circumstances and on top of that that it is in the public interest to have public hearings indicates that these would occur very seldom.

Nor will the findings of secret hearings be made public, with Labor charging the commission to only “refer findings that could constitute criminal conduct to the Australian Federal Police or the Commonwealth Director of Public Prosecutions.”

Is there enough money?

The funding of the NACC too falls short of the hopes put forward by its proponents. “The Government has committed $262 million over four years for the establishment and ongoing operation of the Commission,” the media release stated.

This amount, $65.5 million per year, is under the $100 million recommended by Griffith University academic A.J. Brown and endorsed by Grattan Institute program director Kate Griffiths.

Whistleblower protections

High on the list of priorities for experts and cross-bench politicians was beefing up whistleblower protections.

In an open letter signed by 15 members of the federal parliamentary cross-bench, “Strong whistleblower protection, including through a whistleblower protection commissioner” were the first priority.

The need for whistleblower protections was also highlighted by Transparency International CEO Clancy 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,” Moore said in advance of today’s announcement.

Albanese and Dreyfus’s media release made no reference of whistleblowers except to say the NACC would be taking referrals from whistleblowers and the public in its investigation of “serious or systemic corrupt conduct”. Again, what is “serious” and “systemic”? We may find out when the exact wording of the legislation is released.

Jurisdiction

The cross-bench was hoping to broaden the scope of investigation of any integrity body to include so-called “grey” corruption which is conduct that does not meet the letter of the law definition but still reached a threshold of misconduct.

The government’s media release highlights this as a priority, stating that the body’s role will be “to investigate serious or systemic corrupt conduct across the Commonwealth public sector by ministers, parliamentarians and their staff, statutory officer holders, employees of all government entities and government contractors.”

Haines, in her doorstop interview this afternoon, said that she was “quite satisfied that [Dreyfus’s] bill looks very similar to the bill I put to parliament around a broad definition of corruption in that it needs to be serious or systemic and that it needs to shine a light on whoever is endeavouring to corrupt public processes.”

The independent MP also cautions that it is too early to recommend amendments to the bill and that she will wait for the legislation to be released tomorrow before scrutinising government’s proposal in depth.

We will know more soon enough, even though we may only get to know a tiny fraction about its investigations.

Michael West Media originally published this article