A question of integrity

| October 4, 2021

Are anti-corruption commissions, and their role, set to come under new attack in Australia?

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 sure to reignite debate over the scope and powers of such bodies around the country.

The NSW ICAC is celebrated for exposing corruption across politics, including the now-convicted former Labor ministers Eddie Obeid and Ian Macdonald. But as the third Liberal premier to resign as a result of ICAC scrutiny since 1992, Berejiklian’s demise is almost certain to provoke a backlash.

The news followed the South Australia parliament passing sweeping amendments to its own Independent Commission Against Corruption (ICAC) last week, narrowing the scope of its operations and reducing its transparency.

Both events bring sharp focus to the right balance of powers for all such bodies, especially the long-awaited federal integrity commission, still in the works over two years after being promised by the Morrison government.

However, South Australia’s reforms in particular point to why a political backlash against these important agencies would be extremely unwise.

What did South Australia do?

Far from inspiring public confidence, the South Australian reforms have sparked considerable controversy. The changes strip the ICAC of its original powers to investigate not just corruption, but also misconduct and maladministration.

Commissioner Ann Vanstone has said the amendments “decimated” her powers to investigate corruption. A further suite of changes jeopardises her ability to even report publicly on 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 SA’s parliament passed the laws only reinforces the public suspicion.

It is more worrisome than what happened in NSW in 2016, when the parliament restructured that state’s ICAC to add more commissioners and a full-time CEO, seriously altering Commissioner Megan Latham’s role. Latham resigned, returning to her seat on the NSW Supreme Court.

Some elements of South Australia’s reforms make arguable sense, such as giving the primary power over investigating maladministration back 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 up for the type of rigorous inquiries into government failures the ICAC excelled at. This includes being willing to sheet responsibility home to ministers and governments where necessary, not simply examine bureaucratic performance.

Former ICAC Commissioner Bruce Lander’s inquiries into dealings for the sale of government-owned land and major problems in state-run aged care set a new standard of transparency and public accountability for the state.

But a far bigger problem is shifting the power to examine official misconduct to the ombudsman, which is a poor fit for that office. It also strips the ICAC of a large part of its proper function.

A flawed fix to a flawed body

Many defects in the original SA model have been amplified by the reforms, sounding warnings for other states and the proposed national body.

Limiting the ICAC purely to investigating criminal corruption leaves it unable to lift the lid on many forms of non-criminal misconduct. This includes conflicts of interest, which are the slippery slope to more serious corruption taking hold.

With inquiries into allegations of serious parliamentary misconduct still outstanding, and a recent rise in reported police complaints in the state, the ICAC’s ability to ensure misconduct does not grow into systemic corruption has become crucial.

The best state models allow their anti-corruption bodies to examine allegations of serious or high-risk misconduct, alongside provable criminal offences – as in NSW. This power is key to actively 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 benefit of a broad, common law “misconduct in public office” offence at its disposal.

The SA ICAC has also been the most secretive in the country. This is because it was modelled on federal crime commission legislation, not other states’ ICAC models. As such, it was never able to hold any public hearings. The recent amendments only make this secrecy worse.

As the recent Transparency International/Griffith University report on Australia’s national integrity system shows, safeguards are always needed, and there is always a balance to be struck in determining when anti-corruption bodies should use their public hearing powers — similar to royal commissions or coronial inquiries.

But there is no question, such powers are needed. And South Australia has none.

Lessons for the rest of Australia

South Australia has given a big signal to other Australian jurisdictions on what not to do, especially for the proposed federal integrity commission. Even at times of crisis and political pressure.

Recent proposals for the federal body have raised similar concerns about too little transparency and too narrow a focus on the rare and high threshold of criminal offences, at the expense of “grey area” misconduct.

In the real world, there are no bright lines between criminal corruption and serious misconduct.

The federal purchase of land at Leppington for the Western Sydney airport has raised questions of both. While the Australian Federal Police has found no provable criminality in this controversial deal, the lack of an independent body to fully investigate and prevent recurrence of the non-criminal failures involved leaves ongoing, wider risks of corruption unaddressed.

The SA experience is also a reminder that while anti-corruption agencies might be initially popular, they can quickly end up with few powerful friends or admirers.

The uncomfortable truth is politicians, like many others in public service, are prone to cognitive dissonance. They know public integrity is a desirable goal, but become acutely sensitive to their own vulnerabilities when anti-corruption bodies are implemented.

The lessons here are clear: a best-practice federal integrity commission should look nothing like the South Australian model, and not be set back by the latest developments in NSW.

There can be no public confidence in a body aimed at rooting out corruption if its work is done behind closed doors, and with one hand tied behind its back.

This article was written by Andrew Goldsmith, a Strategic Professor of Criminology at Flinders University; and A J Brown, a Professor of Public Policy and Law at the same institution.  It was published by The Conversation.