Recently, a team from Transparency International and Griffith University released an important report. The report, Australia’s National Integrity System: A Blueprint for Action, proposed that an entirely new and comprehensive governmental integrity system be developed in Australia. Plainly the report picked up on the fact that public concern with the abuse of public power for private or political gain has been escalating significantly. Instances of governmental corruption have attained a level of crisis federally and in states.
The concern with corruption and misconduct in public office has crystallised in the current debate about the appropriate powers and procedures of a prospective Federal Integrity Commission. Helpfully, the Transparency International Report has identified a number of criteria which such a Commission should fulfil if it is to be considered effective. The key criteria are:
1. There should be common minimum standards of professional and ethical conduct for all federal public officials irrespective of their role or status.
2. There should be a comprehensive scope for the Federal Integrity Commission to investigate any conduct – criminal and non-criminal – which undermines confidence in the integrity of public decision-making.
3. The Commission should have full capacity to receive and act upon corruption information from any person.
4. The Commission should have full powers to hold compulsory hearings (public and private), conduct investigations and make public reports wherever these are in the public interest.
These criteria seem unarguable. Christian Porter’s draft Commonwealth Integrity Bill, however, fails on almost everyone. It’s worth looking at the Bill against these criteria in order to evaluate its efficacy and deficits. This evaluation can be assisted by comparing the Porter draft’s provisions with those contained in the Private Member’s Bill on the same subject advanced by the independent Member for Indi, Helen Haines. She was advised in its drafting by a committee of highly regarded former judges and academic experts.
The most striking feature of the Porter Bill is the bifurcation it creates between law enforcement agencies on the one hand and public sector agencies on the other. In contradistinction to the first criterion noted above, these two segments of the public sector are treated quite differently. The law enforcement division, which consists of eleven law enforcement agencies, is held to quite rigorous anti-corruption standards. The public agency division’s anti-corruption standards are wayward and weak.
Take for example the Porter Bill’s definition of ‘corrupt conduct’ and ‘a corruption issue.’ A law enforcement corruption issue is an issue as to whether a person has engaged in corrupt conduct; is engaging in corrupt conduct; or may in the future engage in corrupt conduct.
A public agency corruption issue is an issue as to whether a person has engaged in corrupt conduct; or is engaging in corrupt conduct. In this division, therefore, there is no reference in the definition of engagement in corrupt conduct in the future. Impending corrupt activity escapes the Commission’s concern.
Next, the Porter draft defines what it is to engage in corrupt conduct. An official of a law enforcement agency engages in corrupt conduct if that official abuses their public office; perverts the course of justice; or engages in conduct ‘for the purpose of corruption of any other kind.’
In contrast a staff member of a public sector agency – for example, a Minister, parliamentarian, political staffer or public official – engages in corrupt conduct if they abuse their office or pervert the course of justice and if they engage in conduct that constitutes a criminal offence.
The reference to engagement in a criminal offence sets an extraordinarily high bar before the Federal Integrity Commissioner can initiate a public sector corruption investigation. A normal pattern would be that the Commissioner would initiate an investigation and, as part of that investigation, would determine whether or not any corruption-related criminal activity has occurred. To set down a requirement that before commencing a corruption inquiry the Commissioner should reasonably suspect that criminality has occurred in-effect pre-judges an investigation’s outcome. It restricts the investigation of corruption to criminal conduct alone.
It excludes from inquiry and investigation any and all actions short of criminality, for example, misconduct in public office, dishonestly benefiting from the application of public funds for private advantage, and impropriety in government procurement. Each of these actions is commonly and properly understood as conduct constituting corruption – but not in this draft law.
To narrow the definition of engagement in corrupt conduct in this way makes a mockery of what an effective federal integrity commission is designed to be. According to the second criterion set down by the Transparency International report, a Commission should be able to investigate any conduct – criminal and non-criminal – which undermines confidence in the integrity of public decision-making. The Porter Bill comes nowhere near to conformity with that criterion.
The Helen Haines Bill overcomes all these difficulties by providing a clear and comprehensive definition of corrupt conduct and applying it uniformly and equally to every facet and activity of public administration. The complex and unnecessary distinction between law enforcement agencies and public sector agencies does not appear.
“Corrupt conduct is any conduct of any person that adversely affects,…either directly or indirectly, the honest or impartial exercise of official functions by any of the following: the Parliament, a Commonwealth agency, any officials, (and) any conduct of a person that involves…a public official in placing private interests over the public good”.
The third criterion set down in the Transparency International report requires that a Federal Integrity Commission should have full capacity to receive and act upon corruption information from any person.
The Porter Bill places strict restrictions upon the Commission’s authority to receive individuals’ allegations of corruption. A member of the public, even if possessing strong evidence of public sector corruption, cannot refer a public agency corruption issue to the Commissioner.
Referrals may be made only by specified agencies including. for example, the Commonwealth Ombudsman and the Australian Federal Police.
This referral provision would exclude every genuine whistleblower from direct access to the Commission. The Commissioner could accept a whistleblower’s complaint only if it is filtered through and endorsed by a Commonwealth department or agency. This represents a very high hurdle.
By contrast, Helen Haines’ draft provides simply that a person may refer an allegation, or information, that raises a corruption issue directly to the Commissioner.
In conformity with the third criterion, when acting upon alleged corruption, the Federal Integrity Commission should have the power to initiate corruption investigations on its own initiative. The Porter Bill, however, does not provide the Commission with unfettered discretion as to the commencement of such an investigation.
The Commissioner may initiate an own motion investigation only where in the course of an existing investigation he or she becomes aware of an allegation of corruption and the Commissioner reasonably suspects that the offence to which the allegation relates has been or is being committed. Here again, the Commissioner appears restricted to investigating suspected criminal conduct only.
The Haines Bill dispenses with this fetter. It provides that the if Federal Integrity Commissioner becomes aware of an allegation that raises a corruption issue, the Commissioner may on his or her own initiative deal with the corruption issue.
The fourth Transparency International criterion states that the Commission should have full powers hold compulsory hearings (public and private), conduct investigations and make public reports wherever these are in the public interest. The Attorney-General’s draft Bill, however, rules out public hearings in relation to investigations of Ministers, parliamentarians, political staffers, public sector agencies and their officials.
It is beyond doubt that public hearings with respect to matters of corruption are an essential weapon in an integrity commission’s arsenal. They form a crucial component of a rigorous process of investigation. Public examinations of persons allegedly involved in corruption place intense pressure on those accused to provide honest answers to questions. Untruthful answers to questions carry the public stigma and probable penalty of perjury.
Public hearings serve to inform the wider public of the nature of, and damage caused by, corrupt activity. The stigma, embarrassment and, possibly, humiliation associated with the requirement that a person accused of corrupt activity should account for their actions to a community of their peers serves as a powerful deterrent to others who may contemplate similar conduct.
Helen Haines’ Bill deals with the subject of hearings in a careful and balanced way. It provides that the Commissioner may hold a hearing for the purpose of investigating a corruption issue. The Commissioner may decide to hold the whole or part of a hearing in public or private if he or she considers it is in the public interest to do so.
In making that determination, the Commissioner is required to consider whether any unfair prejudice to a person’s reputation or unfair exposure of a person’s private life may occur by virtue of the hearing being conducted in public.
There are other significant deficits in Mr Porter’s Bill that I do not have the space to canvass here. The cloak of secrecy that Bill throws over the entirety of the investigative process is one of them.
In conclusion, when commenting on the differential treatment in the Bill of law enforcement officers and public agency officials, the President of the Australian Federal Police Association described the far more protective treatment of malfeasance by Ministers, parliamentarians and public officials as unfair.
‘You can’t just say my mates get this and everyone else gets that. It’s almost like creating a protection racket for their parliamentary mates. It’s very much an us and them situation.’
He is right. It is a protection racket. Mr Porter’s Bill is a politically self-interested flop. He can’t be serious.
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.
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