It should come as no surprise that those who trivialise our nation’s deadly alcohol toll or seek to inculcate and normalise alcohol into every aspect of Australia’s culture, regardless of the true cost, are the very same who profit from its promotion and consumption.
This truism was borne out by the undue influence of the powerful alcohol industry, Australia’s second largest political donor, on its invited revision of the overdue National Alcohol harm prevention strategy (NAS). This represented a prima facie conflict of interest.
My research on regulatory capture was recently published in the Journal of Law and Medicine and reflected in a submission to the NSW Independent Commission Against Corruption’s (ICAC) Operation Eclipse on political lobbying. It analyses the process whereby powerful well-connected industries exert undue influence to effectively control or ‘capture’ the policy development and law-making process – law making which is constitutionally obligated to protect and serve the ‘public interest’, including among other things public health, public safety and the environment.
Critical to the capture process analysed in my research are the presence of complicit elected law-makers, evidence of reciprocal exchange of favours – for example, a pattern of large political donations, revolving doors between political appointments and very lucrative industry positions – in exchange for laws and enforcement practices demonstrably favouring commercial private interests over the public interest, and a lack of transparency and public/independent expert inclusiveness.
Capture can only occur in regulatory environments that devalue honesty, integrity, probity, governance and accountability. Few may disagree that the recent cacophony surrounding the Banking Royal Commission, the Crown Casino affair and now, the Federal government’s belated rejection of leading independent medical expert advice concerning the National Alcohol Strategy – in favour of the alcohol industry’s self-serving recommendations, provides sufficient evidence of the magnitude of ethical and moral corruption entrenched in our supposed democratic system.
Whether it’s the draconian nature of our defamation laws and/or the prudence of some of our acclaimed independent researchers and commentators, very few have been willing to label this pattern of conduct between powerful industries and gratefully indebted political parties – as ‘corrupt’.
It is time we all called this conduct for what it really is.
The lack of support for a powerful, independent and broad ranging National Integrity Commission by our major political parties is proof of their unwillingness to take decisive action against their golden geese. They perpetuate avoidable public exposure to intolerable levels of primarily preventable alcohol, gambling, unhealthy food harms and environmental degradation.
In McCloy v New South Wales the High Court of Australia provided invaluable, but ignored guideposts to all Australian Parliaments and their citizens of the contemporary nature of corruption that relates to the above illustrations of sustained undue influence of large political donors in return for favours. In its judgement the Court wrote:
the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder … quid pro quo and clientelistic corruption threaten the quality and integrity of governmental decision-making, but the power of money may also pose a threat to the electoral process itself. This phenomenon has been referred to as “war-chest” corruption.  HCA 34, 13 -14, 62
Neither of the background papers on the NSW ICAC’s lobbying inquiry and the development of independent proposals for an effective National Integrity Commission appear to sufficiently reflect the seriousness and magnitude of regulatory capture.
Out of the Crown Casino and NAS imbroglios must arise fundamental law, political culture and institutional reforms. The starting point is ensuring a potent national legal definition of corruption and the establishment of a new agency, which addresses the endemic reality of regulatory capture and extends well beyond the limits of any one State or Territory.
An earlier version of this article was first published on Drink Tank on 12 August 2019.
Tony Brown is a PhD (Law) Scholar, Conjoint Fellow School of Medicine and Public Health, University of Newcastle.