Admin Law Assessment 2 2020 PDF

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Admin Law Assessment 2 ? Should the federal Parliament create a federal anti-corruption Commission

Corrupt conduct is defined in s8 of the Independent Commission against Corruption Act 19881, (ICAC) and involves deliberate or intentional wrongdoing involving or affecting a public official or public sector organiser. Following the introduction of the ICAC in NSW2, every state government 1 Independent Commission Against Corruption Act 1988 (Cth) s 8. 2 ibid.

within Australia has created an independent anti-corruption commission which operates in addition to police and other integrity commissions, with the jurisdiction to investigate complaints and expose corruption within their government. The federal parliament has been reluctant to follow suit, meaning that currently there is no federal agency that holds the jurisdiction to investigate and expose corruption within the federal government. The Australian government has made a commitment to ensure that they have a body specialised in combatting corruption, under s6&36 of the UN Convention Against Corruption (2004)3. The introduction of a Federal anti-corruption commission is controversial, as there is an existing ‘multi-agency’ approach to auditing specific sectors of the federal government, which many feel is sufficient to prevent corruption. However these agencies are not broad based and therefore there are limitations to their investigative powers, meaning there are unaudited areas within federal government. This means they are not currently fulfilling their commitment. It has also been argued that there is s lower risk of corruption at a federal level, however the modern political landscape has provided many avenues through which corrupt conduct may occur. This demonstrates the need for a federal anti-corruption commission . with independence, resources and a broad jurisdiction Parliament at a federal level is just as vulnerable to corrupt conduct as at a state level. A primary reason that the federal parliament is reluctant to introduce a federal anti-corruption commission is the notion that there is less vulnerability to corruption at a federal level, this is not the case. The Australian Public Service Commission (ASPC) in recent report4 has suggested that there is no need for a National anti-corruption commission, because at a federal level the risks of corruption are reduced. This view is not universal however, with many individuals and groups, such as Mr Ipp, former ICAC commissioner claiming that the people occupying seats in federal parliament are no less prone to corruption than those holding seats in NSW.5 The Accountability Round Table (ART) and Supreme Court Judge Tim Smith also assert that the changes in power accountability at the federal level pose increased risk of corrupt conduct.6 These changes include but are not limited to the privatisation of government services, increased government control of information, funding needs of election campaigns, increased media dependence on government sources and the increased number of ministerial staff who possess a lack of accountability, as well as future challenges surrounding sustainable policy change which may cause some business profits to suffer, risks of . corruption at a federal level have and will continue to increase The notion that there is less risk of corruption at a federal level has also been disproven by several recent cases of corrupt conduct. This occurred in 2005, when the Australian Wheat Board was found to be violating Australian Law, as well as United Nations sanctions by paying bribes to an Iraqi leader.7 And again in 2015, when an employee of the Australian Bureau of Statistics employee was jailed for using confidential data for personal financial gain.8 These cases alone are ample evidence for the need to implement further anti-corruption mechanisms, and the ART submitted evidence of at least seven more instances where corruption has occurred at a federal level.9 Therefore the assumption of low risk is not a compelling argument against the development of a federal anti3 UN General Assembly, United Nations Convention Against Corruption, 31 October 2003, A6/36. 4 Ms Godwin, Merit Protection Commissioner, Australian Public Service Commission, Joint Committee on the Australian Commission for Law Enforcement Integrity Hansard, 14 August 2009, p. 22. 5Mr Bob Bottom OAM, Submission 13, p. [2]. 6 Law Council of Australia, Submission to Attorney-General's Department review of Australia's compliance with chapters three and four of the United Nations Convention Against Corruption, 2011. 7Commissioner the Hon. Terence RH Cole AO RFD QC, Report of the Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme, 2006, p. xiv. 8 Helen Vines, 'Greedy' pair Lukas Kamay, Christopher Hill jailed over $7 million ABS insider trading scam, Australian Broadcasting Company News, 17 March 2015, (http://www.abc.net.au/news/2015-03-17/pair-sentenced-over-abs-insider-trading/6324526.

. corruption commission

At present the federal governments approach to corruption prevention is not sufficient. There is currently a multi-agency approach to monitoring and investigating allegations of corruption across the federal parliament and public sector of government. This consists of a number of bodies such and agencies including the Australian Commission for Law Enforcement Integrity, the Commonwealth Ombudsman, the Australian Federal Police etc. Not one of these agencies holds the jurisdiction to investigate allegations of corruption in both the federal government and the public sector. This approach is fragmented and ill defined, and the limited jurisdiction of each agency has . resulted in large jurisdictional gaps where corrupt conduct may go unregulated and unpunished The existing multi-agency structure does not provide for the investigation of corrupt practices that do not meet the definition of serious crime, and many agencies responsible for the discovery and prevention of corruption do not have the jurisdiction to investigate and expose corruption, as they are unable to investigate ministers, MP’s, ministerial staff or the judiciary. The bodies who can do so (AFP & ACIC) May only do so in the case of criminal investigation, further limiting their ability to function effectively. It is also worth noting that none of these bodies hold the jurisdiction to investigate corrupt conduct as it is defined by state implemented anti-corruption commissions. Therefore the current system is not sufficient to prevent and expose corrupt conduct at a federal . level and it is necessary to implement a federal anti-corruption commission Over recent years, public trust in government has decreased, with many feeling that politicians are self serving and often corrupt. The appointment of a federal anti-corruption commission would restore some faith in government. In order for the government to function effectively there is a required element of public trust. Two 2016 studies found that 74% of Australians feel that politicians serve their own needs first,10 and only 5% of Australians reported that they had trust in the government.11 It was also found that 85.3% of Australians believe that there is government corruption at a federal level.12 This in addition to the recent instances of corruption within the federal government demonstrate the failings of the current anti-corruption mechanisms. The widespread public distrust can be associated with the increased community support and demand for a federal anti corruption commission to be instituted. It is worth nothing that this support is echoed by the Law Council Australia. In order to reduce corrupt conduct and restore public faith in the federal government is is necessary for the federal parliament to create a federal anti-corruption .commission In order to establish an effective federal anti-corruption commission that could overcome the limitations of the current system it would need to have a broad jurisdiction regarding the people and conduct that it could investigate, similar to the investigative jurisdiction of state appointed anti9Joint Select Committee on the Australian Commission for Law Enforcement Integrity, Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity, Accountability Round Table, Submission 11, pp. 4–5. 10 Australian Broadcasting Corporation, confidence in democracy hits record low as Australians ‘disaffected with political class’ (Dec 2016) < https://www.abc.net.au/news/2016-12-20/2016-australian-election-disaffected-study/8134508>. 11 The Conversation, ‘now for the big question: who do you trust to run the country? (May 2016) < https://theconversation.com/now-for-the-big-question-who-do-you-trust-to-run-the-country58723>. 12 The Sydney Morning Herald, ‘federal corruption watchdog needed say 80 percent of Australians poll (2017) < http://www.smh.com.au/federal-politics/political-news/federal-corruptionwatchdog-needed-say-80per-cent-of-australians-poll-20170113-gtqva3.html>.

corruption commissions.13 This would include jurisdiction to investigate any person who may adversely influence the honest or impartial exercise of official functions by any public official or authority such as ministers, ministerial staff, the judiciary, the public sector and members of parliament. It would also require the jurisdiction to investigate a broad spectrum of conduct, as the narrow definition of investigable conduct is a major flaw within the current multi-agency system, . which has allowed for corrupt conduct outside the narrowly defined areas to go un-investigated In order for an federal anti corruption commission to be effective, it is a requirement that it be given significant investigation powers, as modelled on the powers of ICAC (NSW).14 These powers would include but not be limited to the ability to the ability to compel documents, compel public authorities to provide information, the ability to hold public and private hearings, use surveillance technology and have the power undertake investigations at the discretion of the commissioner, as well as to receive and investigate complaints from any source. The 2005 NISA Report15 recommends more detailed good practice principles and a comprehensive outline of appropriate . jurisdiction, investigative powers and administrative arrangements of this anti-corruption body Following the recommendations of the ‘lessons from NSW ICAC, conference paper,16 it is also necessary for legislation creating this investigative body to provide the commission with . independence, and protection from government intervention Alternate models for an anti-corruption commission have been proposed, but many of these would not be sufficient to address all the legislative and investigative gaps of the current multi-agency system. One such proposal is the coalitions Commonwealth Integrity Commission (CIC).17 This model is conservative, and attempts to reduce the costs and protect the reputation of individuals who may come under investigation. Due to the narrow definition of corruption, lack of public hearings and limited circumstances under which an investigation may be initiated, this model would not be effective. The CIC would be unable to act on tip offs, and would be limited to investigating referrals from other offices, and only then if there is ‘reasonable suspicion’ that a criminal offence has taken place. Such conservative models would not entirely address the issues with the current system, and would not fulfil the governments commitment to have an anti-corruption body. This necessitates the introduction of an anti-corruption committee with broad definitions as well as .jurisdiction An opposing bill, the National Integrity Commission (NIC) Bill,18 proposed by the Greens in 2009, has recently passed the senate. This bill proposes a broad based commission that does hold the jurisdictional and investigational powers to expose and prevent corruption on a federal level. This bill is promising and would fulfil the requirements for an effective federal anti-corruption commission, it is unlikely to pass through the House of Representatives where many seats are held by supporters of the formerly mentioned CIC.19 This refusal to implement an effective model of corruption auditing demonstrates a reluctance to acknowledge or address corruption, which in turn only decreases the public’s distrust in government. The governments reluctance to proactively prevent corrupt conduct at a federal level only highlights the necessity for a federal anti-corruption .commission In conclusion, it is necessary to implement a federal anti-corruption commission, as the current 13 Independent Commission Against Corruption Act 1988 (Cth) s 8. 14 ibid. 15Transparency International Australia and Griffith University, National Integrity Systems Assessment—Final Report, 2005, pp. 92–93. 16 Cowdery (2017), Lessons from NSW ICAC, Conference Paper: Accountability and the Law 2017 Conference, http://tai.org.au/content/lessons-nsw-icac-watchdog-has-teeth. 17 Commonwealth Integrity Commission Bill 2020 (Cth). 18 National Integrity Commission Bill 2009-2019 (Cth). 19 Commonwealth Integrity Commission Bill 2020 (Cth).

multi-agent approach to auditing specific government sectors is not efficient. There are limitations to the powers of current auditing agencies, preventing them from investigating any matter that does not meet the definition of a serious criminal offence, and their narrow jurisdiction and reduced investigative powers leave many legislative gaps in which corrupt conduct may occur unchecked. Through the introduction of an independent broad based anti corruption model, with the jurisdiction and power to investigate any person who may adversely affect the impartial exercise of official functions, Australia’s federal parliament would increase public trust in government, reduce the occurrence of corrupt conduct at a federal level and meet their commitments under the UN Convention Against Corruption. For these reasons the federal parliament should create a federal . anti-corruption Commission

References A Articles/Books/Reports Commissioner the Hon. Terence RH Cole AO RFD QC, Report of the Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme, 2006 Joint Select Committee on the Australian Commission for Law Enforcement Integrity, Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity, Accountability Round Table, Submission 11 Law Council of Australia, Submission to Attorney-General's Department review of Australia's compliance with chapters three and four of the United Nations Convention Against Corruption, 2011 Marie Dela Rama and Michael Lester, ‘Anti-corruption commissions: lessons for the Asia-Pacific region from a proposed federal anti-corruption watchdog’ (2019) 25 Asia Pacific Business Review! 571 Sheen, Carly, ‘Anti-corruption agencies: Impact on the privileges and immunities of parliament’ (2012) 27 Australasian Parliamentary Review 18 Transparency International Australia and Griffith University, National Integrity Systems Assessment—Final Report, 2005 C Legislation Commonwealth Integrity Commission Bill 2020 (Cth) ( Independent Commission against Corruption Act 1988 (NSW ( National Integrity Commission Bill 2009-2019 (Cth

D Treaties UN General Assembly, United Nations Convention Against Corruption, 31 October 2003, A6/36 E Other Australian Broadcasting Corporation, confidence in democracy hits record low as Australians ‘disaffected with political class’ (Dec 2016) < https://www.abc.net.au/news/2016-12-20/2016-australian-election-disaffected-study/8134508> Cowdery (2017), Lessons from NSW ICAC, Conference Paper: Accountability and the Law 2017 Conference, http://tai.org.au/content/lessons-nsw-icac-watchdog-has-teeth Helen Vines, 'Greedy' pair Lukas Kamay, Christopher Hill jailed over $7 million ABS insider trading scam, Australian Broadcasting Company News, 17 March 2015, (http://www.abc.net.au/news/2015-03-17/pair-sentenced-over-abs-insider-trading/6324526> Parliament of Australia ‘select committee on the establishment of a national integrity Comission chapter 3’ < https://www.aph.gov.au/parliamentary_business/committees/senate/establishment_of_a_national_in < tegrity_commission/nic/interim%20report/c03 The Australia Institute, ‘the case for a federal corruption watchdog ICAC needed to fill the gaps in our integrity system’ (2017)...