The proposed Commonwealth Integrity Commission is falling under criticism that it will only hold private inquiries into corruption issues, writes Dr Binoy Kampmark.
ON 2 NOVEMBER, the Australian government announced a commitment of ‘$147 million to the development and operation of a Commonwealth Integrity Commission (CIC) designed to strengthen and complement the existing multi-agency approach to integrity, anti-corruption and law enforcement at a federal level’.
This is not the sort of statement to set your pulse racing with excitement. Any promise of strengthening a pre-existing system of credible measures is already doomed to ineffectualness. The devil lies in the presumption.
While paying lip service to measures already underway – broadening the powers of the Australian Commission for Law Enforcement Integrity (ACLEI) to cover four new agencies, for instance – the announcement also noted the release of draft legislation by Attorney-General Christian Porter ‘to establish a powerful new public sector watchdog to be known as the CIC’.
The powers of this body would involve compelling people to give sworn evidence at hearings; provide information and produce documents, even incriminating material; authorise searches of homes and seizure of property pursuant to warrant; authorise arrests; tap phones and conduct surveillance; and confiscate passports by order. Penalties for non-compliance are also included.
On the face of it, it seems like a formidable body, kitted out with teeth and resolve. But it always pays to read the qualifying notes.
For the Morrison Government, the new CIC would avoid ‘the failings’ of similar investigating bodies at the state level:
‘Such failings have resulted in multiple instances of unjust and irreparable harm to the reputations of innocent people.’
The Attorney-General expands on the point:
“The model proposed in the Consultation Bills learns from the significant mistakes of state integrity bodies and strikes the right balance between the need to protect the rights of individuals and the need to establish a powerful investigative body that can guard against potential criminal corruption at the Commonwealth level.”
Thus emerges that hoary old chestnut: can such bodies, set up to investigate and deter corruption, be used against political opponents? Government MPs are particularly concerned, having seen the exploits of the New South Wales Independent Commission Against Corruption (ICAC). The scalping of NSW Premier Barry O’Farrell in 2015, who the body conceded had “no intention... to mislead”, still riles.
Porter does not shy away from the political and politicising implications of the proposed CIC. He wants a body with reins and discernible limits.
“The Greens model, supported by Labor, would see the most extreme coercive powers being used for the most minor code of conduct breaches that would otherwise be minor disciplinary matters.”
To that end, the proposed CIC has fairly limited scope in terms of investigation: approximately 20 per cent of the Commonwealth public sector, which is a narrow kingdom to reign over. This means that the balance of the Government – including politicians – will be only subject to the CIC’s gaze in private.
Much will remain hidden, given the provision under Section 99(5) of the Commonwealth Integrity Commission Bill 2020 that a ‘hearing for the purpose of investigating a corruption issue must be held in private to the extent that the hearing is dealing with a public-sector corruption issue’. The provision is also tied in with instances where ‘certain evidence must be given in private’, outlined under Section 106, notably where such evidence ‘would disclose information that relates to a public sector corruption issue’.
Professor A. J. Brown, who has laboured over the need for such a commission at the federal level for years, notes how the proposed ‘powers may be strong’ but investigative scope limited:
‘...there will be little or no jurisdiction to get to the bottom of “grey area” corruption like undisclosed conflicts of interest.’
This raises the point about how messily broad corruption tends to be. In this, the proposed laws are supremely deficient. Corruption need not be criminal, but the CIC Bill ensures that many politicians will be spared the rod for engaging in conduct that falls short of a criminal offence. Only “listed offences” will matter, including, as outlined in Sections 18 and 19, the conventional forms: ‘obstructing or hindering the performance of services’, bribery, money laundering, computer offences and offences against a range of other Acts.
This carving qualification will also leave a good number of other officials – for instance, university managers marked by cupidity – exempt for the colossal cockups, fiefdoms and favours that would satisfy any definition of corruption.
There is also the thorny point of how best to act upon the information of whistleblowers. Australia’s record on this is feeble and that record will not be broken by the proposals in their current form. Much time is spent in the proposed laws on the subject of vexatious complaints. Article 70 of the CIC Bill covers instances where a referral or notification of ‘a public sector corruption issue with intention to cause detriment’ lacking any basis ‘for suspecting commission of offence’ can be punished. The threshold for the complainant is onerous; failing to meet that, the individual might face 12 months in prison.
While also discouraging to whistleblowing, the entire CIC scheme in its current form is hostile to the very idea of the tip-off, while privileging the Attorney-General’s powers to certify that information need not be disclosed to the CIC. The excuses are musty and old, utilising powers long used to prevent embarrassment and exposure of government improprieties including material that might ‘prejudice the security, defence or international relations of the Commonwealth’ (Section 270(2)(a)).
The impetus to commence an investigation must come from within the very sector that may well be compromised by corruption. The CIC can only act upon referrals from such individuals as the Attorney-General, ministers responsible for their departments and parliamentarians. Furthermore, these can only be in the context of a “reasonable suspicion” that a criminal offence has taken place.
The critics have been queuing up to give the proposals a bruising serve of disapproval.
Shadow Attorney-General Mark Dreyfus suggested that:
“...an integrity commission that is worth its name must be able to start its own investigations.”
The Australian Federal Police Association (AFPA) has openly opposed the current framework while being ‘supportive of a CIC model that is equitable and where all people fall under the scope of the CIC are faced with the same set of rules and outcomes’. Central to the AFPA’s opposition is the scheme’s sharp segregation: law enforcement officers and employees, parcelled off from ‘politicians and senior public servants’.
According to the body’s president, Alex Caruana, actions against suspected bad apples in the police force were already possible via the ACLEI.
What the proposed CIC would do is expose such individuals to a public setting:
“If police officers have to face public hearings, then so must politicians and public servants.”
Caruana is also keen to point out the self-serving nature of the proposed law:
“I can’t recall the last time a police officer was involved in awarding contracts worth millions of dollars without open tender or purchasing land for ten times its actual value and yet under the proposed CIC model they are held to a higher standard and face more scrutiny than a politician.”
Punish the police; spare the politician.
Dr Binoy Kampmark was a Cambridge Scholar and is an Independent Australia columnist and lecturer at RMIT University. You can follow Dr Kampmark on Twitter @BKampmark.
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