Written by: Yee-Fui Ng, Senior Lecturer, Faculty of Law, Monash University
Attorney-General Christian Porter added a little more flesh to the bones of the long-awaited Commonwealth Integrity Commission this week. In a National Press Club address, Porter argued there must be a balance between having a powerful investigative body and fairness to individuals investigated by the commission.
Queensland LNP MP Llew O’Brien has warned he may cross the floor and vote against the government on this issue. O’Brien believes politicians and their staff should be held to the same standards as law enforcers.
Crossbench MPs have also called on the government to establish a national integrity commission “with teeth”.
The government intends to release a draft bill this year.
So, what is the government’s model? And why has it been criticised?
The government’s model
The government’s proposed CIC has two parts: the law enforcement division and the public sector division.
The law enforcement division applies only to law enforcement agencies and those with coercive powers. The public sector integrity division covers the rest of the public sector, federal service providers, subcontractors, as well as MPs and their staff. The commission will have the power to conduct public hearings only through its law enforcement division.
By contrast, the public sector division will not have the power to hold public hearings or make public findings of corruption. Instead, it will investigate and refer potential criminal conduct to the director of public prosecutions.
This is a far more limited jurisdiction compared to its equivalent state counterparts, such as the New South Wales Independent Commission Against Corruption (ICAC), which can conduct public hearings and make findings of corruption in the public sector.
All states now have an anti-corruption commission and the federal government is lagging behind.
Why not everyone is happy with the government’s model
The government’s model has been criticised for a few reasons.
The first is that it would fail to achieve its main aim of exposing corruption in the public sector.
The bar for investigation is too high, requiring a reasonable suspicion of corruption amounting to a criminal offence before an investigation can even begin. This is a difficult hurdle to clear.
Lessons from the state anti-corruption commissions show evidence of corruption has been unveiled through investigations based on allegations, rather than before an investigation begins.
Another major criticism is that the proposed CIC will not have the power to hold public hearings.
Public hearings ensure proceedings are not cloaked in secrecy and will increase public trust. Notable inquiries in Australia have exposed major corruption through public hearings. This includes the Fitzgerald inquiry that revealed widespread corruption in the Queensland police force, leading to the resignations and imprisonments of various former ministers and officials.
But the attorney-general has raised legitimate issues about damage to individual reputations where a person subject to a public hearing has their reputation tarnished in the media, but is ultimately found not guilty by the courts.
This can be ameliorated by having the option of public and private hearings. Public hearings should be used only when it is in the public interest, balanced with considerations of individual reputation.
Critics have also complained about the CIC’s inability to initiate investigations itself and to receive complaints directly from the public. It can only investigate after a referral from the public sector, or if the CIC is conducting an investigation and discovers additional corrupt conduct in a different department. This is a significant limitation.
Other comparable investigative bodies have “own motion” powers to investigate issues based on public complaints.
There is no principled reason why we should keep MPs, their staff and public servants to a lower standard than law enforcement agencies. Corruption can manifest equally within the ranks of MPs, the public sector and law enforcement agencies.
The need for a national integrity commission
The public is calling out for a national integrity commission, with two-thirds (67%) of Australians in favour of one.
A group of judges have signed a letter calling for a national integrity commission with strong powers and the ability to hold public hearings.
Australians want a robust and well-resourced national integrity commission that has strong powers to achieve its mandate. The government should reconsider its model in light of public criticism.
Yee-Fui Ng does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.