The Prime Minister has broken his promise to adopt legislation establishing a Federal Integrity Commission. The decision is not all that surprising. It has been clear for a long time that the Government does not favour a federal anti-corruption body. What is interesting, however, is how impoverished the reasons that the Prime Minister has given for ditching a commission actually are.
One can hardly believe that he thinks that his defence of a commission’s abandonment is remotely credible.
There are three threads to the Government’s argument. First, it asserts that it would only proceed with a commission if the Labor party in parliament supports the model it has proposed, without amendment. Secondly, it contends that a Commission would be acceptable only if it foregoes public hearings. Third, it says it will not accept any model that is, in effect, a ‘kangaroo court.’
The first argument is remarkable. It is almost without precedent for a Government to hand a veto power over its own legislation to the Opposition. Nevertheless, in response to a question as to whether the PM would promise to put his proposed model to the next parliament if he won the forthcoming election he was firm on the matter.
‘Our position hasn’t changed. Our view has been the same. When the Labor party is prepared to support the legislation in that form (i.e. without amendment) then we will proceed with it.”
The argument is disingenuous because he knew, and knows, that the Opposition would never support the model that the Government had proposed. In the consultation that followed the release of the exposure draft of the legislation, the political and public criticism of the model had been overwhelming. Yet the thoroughly discredited model is the model the Government sticks with.
Almost no one with expertise in the sphere of governmental corruption and misconduct in public office has supported it. The proposed commission would not be able to launch its own investigations, hold public hearings, issue public findings or examine breaches of ministerial standards. No findings may be made with respect to the actions of Ministers, ministerial advisers or parliamentarians. The Commission’s proceedings and conclusions would be secret.
The draft’s definition of corruption is exceptionally narrow. A Minister, parliamentarian, or public official would engage in corrupt conduct if they abused their office, or perverted the course of justice and engaged in conduct that constitutes a criminal offence. Any misconduct in public office falling short of criminality, therefore, would be excluded from the commission’s examination.
So, for example, any official misconduct that involves a public official placing their private interests over the public good; conduct that involves an official in the dishonest or partial exercise of any of his or her official functions; or conduct that could impair the efficacy or probity of an exercise of a public function, could not be inquired into or scrutinised by the commission proposed.
The PM is safe, therefore, in saying that he will introduce his model legislation into parliament if the Opposition supports it, because he knows that it never will.
The PM has firmly set his face against public hearings. The draft proposal rules out public hearings altogether in relation to investigations of Ministers, parliamentary staffers, parliamentarians, and public officials. It is beyond doubt, however, that public hearings are an essential weapon in an integrity commission’s arsenal. They form a crucial component of a rigorous process of investigation.
Pubic examinations of persons allegedly involved in corruption place intense pressure on those accused to provide honest answers to questions. Untruthful answers to questions carry considerable reputational damage and probably the penalty of perjury.
The stigma and humiliation associated with the requirement that a person accused of corruption should account for their actions before the wider community serves as a powerful deterrent to others who may contemplate similar conduct. Public hearings act to inform the wider public of the nature of, and damage caused by, corrupt activity.
Whether a hearing should be conducted in public or privately will be a matter for the judicial integrity commissioner to determine in all the circumstances of the case. Public hearings are discretionary not mandatory.
The PM is fond of describing an integrity commission as a ‘kangaroo court’. A kangaroo court, it seems, is a commission with powers to do things like receive complaints of corrupt behaviour from members of the public, conduct public hearings, require the production of evidence, publish reports of its inquiries and initiate own-motion investigations. Powers such as these, however, are plainly necessary if serous and systemic corruption is to be investigated, combatted and defeated.
The PM is highly critical of State integrity commissions on the grounds that they can destroy an individual’s reputation prior to any finding of corruption having been made, and without having been afforded procedural fairness.
An effective commission will be designed, however, with the power to ensure any unfair prejudice to a person’s reputation or unfair exposure of a person’s private life that would be likely to occur in evidence would be protected as confidential. And in all State commissions, the rules of natural justice are legislatively required to be observed.
One final matter is worth noting. The PM says, frequently, that a fully prepared and considered version of the government’s draft integrity commission bill is available for parliamentary approval. This is not the case. The government’s draft plan remains merely as an exposure draft released for the purpose of public consultation. It has not been finalised, and it has neither been tabled nor considered by parliament.
There is little point in the PM waving the 367 page exposure draft around as if it is a proud achievement. It is incomplete, subject to further consultation and has no legal or parliamentary standing.
Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University, a former President of Liberty Victoria, and is the Chair of the Accountability Round Table.
Contributions to Pearls and Irritations
Your contribution will fund quality independent comment and analysis in Pearls and Irritations
Contribute
