Systems as well as officials can be crook, as ACT plans new anti-corruption body

Andrew Barr’s conversion to the need for a standing ACT anti-corruption agency just before the election last year was less than enthusiastic. He simply could not see the need, but came to recognise that there were perceptions about the way ACT Labor governed that needed to be addressed. He left open the possibility of having one that was as weak as possible – perhaps even more impotent than the South Australian model.

But the ACT Greens – who hold the balance of power – have now committed themselves to a powerful and extensive anti-corruption body, more on the NSW ICAC model than any other. So Barr may as well make a virtue of necessity, looking to make the ACT a model of a transparent and accountable government. Heaven knows, it may even be popular, and may even lead to more effective, and more economical, government.

Equally, Labor at the federal level may see the political advantage of running harder on the need for a standing anti-corruption body. Strictly it supports such an idea, but in practice its commitment is half-hearted. This is, officially, because many senior members are not persuaded that corruption is a major problem in federal administration, and unofficially because political folklore has it that those who establish such bodies (in the hope of catching out their political enemies) end up tripping over themselves. As witness, say, Nick Greiner, former NSW Liberal premier brought down by the ICAC he created, or Lionel Murphy, in part destroyed, in the 1980s, by the Senate committee system he helped pioneer in the 1960s.

Against that is a desperate need by politicians on both sides to repair some of the damage done to the image of politicians and government by the political bastardry of the past decade, a steady display of personal venality, particularly about entitlements and post-political work, and a succession of displays of incompetence, mismanagement and poor stewardship of public resources.

The pratfalls, such as those of recent months on matters of dual citizenship, compound images of politicians in it for themselves, with little concept of the public interest, and with little idea of what they are doing, or where they are going. Polls indicate an increasing public cynicism about the motivation and personal honesty of politicians; in my opinion, this is somewhat unfair, but it is easy enough, listening to the vomit coming from the mouths of politicians themselves, to understand where the perceptions are coming from.

Rebuilding that trust is no mere matter of looking or sounding more pious, or merely of somehow getting, and sticking with, better policies. There is not enough credit in the bank. Indeed, many citizens half-suspect a bipartisan endeavour to rort and abuse the system, while the public are distracted by the appearance of debate. And many believe that some of the checks and balances have been designed to fail, or have been deactivated.

It is quite true that one cannot legislate for honesty or good stewardship. One can, however, make it more certain that dishonesty will be discovered and exposed. Indeed, that the probability of detection, and the certainty, if it is detected, of disgrace and punishment, will by itself deter the abuse of power, whether by ministers and their minders, by ordinary politicians, by public servants, and by others who exercise power and discretion over the lives of others, such as regulators, police officers and judges.

This week saw the handing-down of an ACT Legislative Assembly committee report on the shape an ACT integrity or anti-corruption body may have. The committee was chaired by Shane Rattenbury, a minister in the Barr government and a member of the Greens, which had made its support of a Barr government subject to conditions including an anti-corruption framework. The committee, otherwise of two Labor and two Liberal members, went for a strong body, with the Labor members notably less keen on public hearings, and fearful it could become a place at which reputations could be shredded by false or mischievous allegations. Yet even they bowed to the weight of opinions that an anti-corruption body that failed to have open hearings or publish findings would fail to assuage public anxiety about political and administrative decision-making in the ACT.

Labor and Barr would insist, of course, that there is no such anxiety, or that, if there is, it rests on poor foundations and politically motivated innuendo. As it happened, Thursday saw a Liberal opposition no-confidence motion defeated in the Assembly, angrily repudiated by Barr as “smear and baseless allegation”, designed to mask the opposition’s hardline conservatism, and as a mere political attack that contained no proof of corruption.

But if the Liberal attack was short on actual allegation, it was clever in establishing some lasting images of the scope and potential for bad or dishonest stewardship, or an environment that was open to corruption. Opposition leader Alistair Coe spoke of fertile ground for corruption, including land deals, development decisions, tax waivers, gambling profits and the awarding of government contracts.

The Labor government was accused of rewarding the select few who conformed to its agenda, while vindictively shutting the door on any individual or entity that opposed it.

The corruption of process embraced decisions affecting Glebe Park and the casino, the CMFEU headquarters in Dickson, Labor’s conflicts of interest in relation to poker machines, procurement arrangements with Unions Act, ACT Labor’s headquarters in Braddon, and the Woden Tradies car park.

A mature democracy such as the ACT should have superior, not inferior, standards of governance of political parties.

Coe was not necessarily suggesting that any of these involved bribery, kickbacks or other criminal conduct. What he suggested was that some of these cases, and others such as the Manuka development proposals and the Brumbies development in Griffith, had involved less than transparent, open or straightforward processes, and a failure to treat all comers equally. In some cases, moreover, the documentation of decision-making was poor, as were arrangements to ensure that the government was getting fair value for money, as the ACT Auditor-General found. In such an environment, one in which some business-oriented politicians find it difficult to appeared detached, it is hardly surprising that there is public cynicism about territory stewardship. It is a cynicism that opposition parties – even ones, such as the ACT Liberals, at a disadvantage in terms of aspiring to be in government – can continue to mine.

There are many who will insist there are already checks and balances designed to investigate, detect, punish and deter individual corruption, or corruption of process. In this context, it was interesting to read some of the Assembly committee’s comments – some of which apply with equal or greater force to federal watchdogs.

The ACT integrity industry already contains the Australian Federal Police, the Commissioner for Law Enforcement Integrity (a federal body with jurisdiction over ACT Policing), the Commonwealth Ombudsman, the public service standards commissioner, the ACT Auditor-General, the Assembly’s ethics adviser and commissioner for standards, and the ACT judicial council.

Yet:

  • no integrity agency has as its core function or objective the role of investigating and exposing corrupt conduct as would be defined by an anti-corruption body and accompanied with the full suite of investigative and coercive powers that are associated with such bodies;
  • most integrity agencies cannot investigate MLAs, ministers, ministerial or members’ staff, or the judiciary. Further, the AFP’s coverage would be limited to matters of a criminal nature;
  • the current integrity framework provides a limited capacity to investigate ACT government agencies through the convening of hearings – whether in public or in private – outside a law-enforcement context. Neither the Ombudsman nor the Auditor-General can convene public hearings. Parliamentary committees can follow up the work of the Ombudsman and the Auditor-General via inquiries, which may involve public hearings; and
  • there appears to be some possible limits related to coherence from a public perspective. This can make it increasingly difficult for complainants to navigate and determine which agency is best suited to report a concern. This can create confusion for complainants and affects awareness of the extent to which the work of the current bodies contribute to public integrity and public confidence in government.

“A pitfall in diffusing integrity and anti-corruption functions across multiple institutions is that it may deny individuals, including citizens and public service employees, a prominent and accessible point of contact for reporting concerns. It may also fail to broker public confidence in and awareness of integrity activities that do not benefit from the profile and publicity of a single, well-known institution.

“The interrelationship of the institutions … including the legal and functional scope of their jurisdiction, is confusing, requiring attention to multiple cross-referenced statutes and interpretive provisions. It is not obvious that a citizen or public servant wishing to report a serious corruption concern would know where best to start. In light of this, the committee considers that there are gaps and vulnerabilities as it concerns mechanisms to investigate and expose ‘serious’ and ‘systemic’ corruption in public administration.

“The committee notes that these gaps and vulnerabilities are accentuated by the poor public understanding of the role of some key stakeholders in the current integrity framework. This can make it increasingly difficult for complainants to navigate and determine which agency is best suited to report a concern or complaint.”

The report also argued that while the commission should focus primarily on public officials, its jurisdiction should extend to third parties where their conduct could have affect public administration or was likely to threaten confidence in the integrity of government. This could include conduct that may amount to blackmail or fraud on a public official, collusion in tendering, and serious and systemic fraud in applying for licences, permits or clearances. This was the type of conduct that, as High Court Justice Stephen Gageler has said, has the capacity to undermine confidence in government decision-making, even if no improper conduct on the part of an official were involved. It would also need to affect the integrity of government processes, threaten equity of access to government services and contracts, or undermine accountability for how taxpayer money is spent and public assets are used.

Alas, the committee seems to have entirely neglected one of my suggestions, which was that the commission’s purview extend at least some distance into the organisation of registered ACT political parties. My argument was that they now receive significant public funds – and not only from Australia’s most generous subsidy per vote received at election – without much in the way of accountability, whether to the public or even its own membership. A mature democracy such as the ACT should have superior, not inferior, standards of governance of political parties, formal rights for members, and statutory controls about how money was raised, publicly declared and disbursed. And, given the power that some officials have over preselections, there may even be scope for checking and balancing the abuse of power by senior party officials in cases where there were suggestions of rewarding and punishing representatives over their public activities.

An ICAC with such a function would not supplant the role of an election commissioner monitoring, under inadequate laws with inadequate resources, existing disclosure and registration regimes. It would serve, rather, as a protection against corruption by party officials, something that does not seem to have much troubled police officers since an aborted inquiry into irregularities involving the Botany Council in NSW about 40 years ago. This saw two Labor officials accused of trying to influence ALP aldermen considering an application to rezone a block of land ultimately owned by News Limited. After 17 days of hearings into bribery and conspiracy charges, and an array of VIP witnesses, including Rupert Murdoch, the charges were thrown out. It would be idle to suggest that a NSW ICAC, had there been one at that time, might have taken a different approach to some of the evidence. Greatly to the disappointment of the Greiner government, when it did establish ICAC in 1988, the commission did not examine any ancient NSW history, finding more than enough suspicious activity in the present day. That was, of course, a matter for the commission and its judgment of priorities, just as it would be if and when Canberra gets its very own commission.

Jack Waterford is a former editor of The Canberra Times. jwaterfordcanberra@gmail.com