Cathy Madden, Politics and Public Administration

Key issue

There has been increasing momentum to establish a dedicated federal anti-corruption agency, as has occurred in every state and territory. Labor has promised to introduce legislation by the end of 2022 to establish such a commission; an aim strongly supported by the Australian Greens and incoming ‘teal’ independents. Although Labor and the independents support Helen Haines’s existing implementation Bill, the specific details are yet to be finalised.

The establishment of a national integrity commission (NIC) was a significant issue during the 2022 election campaign and highlighted a key difference between the major parties. Labor identified establishing a NIC as a key legislative priority, an objective strongly supported by the ‘teal’ independents and Greens. During the last 2 parliaments there has been growing political and public advocacy for an anti-corruption commission, in conjunction with efforts to improve parliamentary standards and ethics (see the article in this Briefing book on Parliamentary Workplace Reform).

Designing and implementing an effective operational structure will be critical to a NIC’s success and encompass questions of jurisdiction, independence, powers and accountability. Over the recent months debate has focused on a few key areas, including:

• how corruption is defined, which will determine the NIC’s jurisdiction. Existing state agencies vary from NSW’s very broad definition (any conduct of any person that adversely affects, or could adversely affect the honest or impartial exercise of official functions of a public official), to South Australia’s more limited definition.
• the ability to hold public hearings, which can promote transparency and understanding of the anti-corruption process. However, exclusively private examinations can help avoid undue prejudice to a person’s reputation, and are a legislated requirement in SA.
• investigative powers, such as those ordinarily associated with royal commissions. This includes the ability to compel the production of documents and witness testimony and the power to search, seize and use surveillance devices.
• the ability for the NIC to decide to begin investigations based on complaints, referrals from other agencies, and own-motion investigations.
• the ability to retrospectively look into behaviour that occurred before the Act is passed. Most of the state integrity models allow for some level of retrospectivity.

Background

In December 2018 the Morrison Coalition Government committed to establishing a ‘Commonwealth Integrity Commission’ (CIC), released a consultation paper on its proposed model and subsequently promised to introduce legislation during the 46th Parliament. However, in February 2022 the Attorney-General Michaelia Cash confirmed that the Government would not progress the CIC before the election.

Unlike the states and territories, each of which has a dedicated anti-corruption agency, the Commonwealth uses a multi-agency approach to combat corruption within the public service and Parliament. This includes the Australian Commission for Law Enforcement Integrity, the Commonwealth Ombudsman, the Australian National Audit Office, the Australian Public Service Commission, and the Independent Parliamentary ExpensesAuthority.

This multi-agency approach, focusing on strengthening existing anti-corruption measures, has been adopted in a number of countries, including the US. Other countries such as Botswana, Hong Kong, Korea and Thailand use a single-agency model, which centralises the primary responsibility of implementing an anti-corruption program. The NSW Independent Commission Against Corruption (ICAC) was modelled on the Hong Kong ICAC. Comparable overseas parliaments such a Canada and the UK have also established specific agencies to deal with parliamentary ethics and standards. Brief summaries of these overseas agencies are set out in a recent Parliamentary Library research paper.

In 2018 two-thirds of Australians strongly supported a federal anti-corruption commission. More recently, in April 2022, 75% of respondents to an Australia Institute poll supported a NIC. This aligns with the April 2022 ABC Vote Compass survey that found just under half of respondents said corruption was a big problem, 36% thought it was ‘somewhat’ of a problem, and only 1% said it is not a problem at all.

Transparency International’s Corruption perceptions index- recognised as a key indicator of Australia’s integrity performance- shows Australia’s declining global standing. Over the past decade Australia’s ranking has dropped from 7 to 18, while regional neighbours, such as Papua New Guinea, have been trending up and New Zealand is consistently equal first.

This decline comes against a backdrop of continued allegations of corrupt conduct in the public and private sectors and some unions. The federal government’s inaction on an integrity commission Bill, despite controversies including community sports grants, commuter carparks, the Leppington Triangle land purchase, parliamentary workplace accountability and sexual harassment issues and alleged ministerial misconduct, has strengthened the calls for establishing a NIC.

Commentators on a NIC

Several prominent anti-corruption experts and organisations support a NIC and have published options for proposed models.

Anti-corruption researchers, including Professor AJ Brown, published the options paper, A national integrity commission: options for Australia, in August 2018. Based on the existing design’s strengths and weaknesses, the researchers identified 3 options to strengthen the federal public integrity framework:

• establish an integrity and anti-corruption coordination council
• establish an ICAC based on current state ICACs
• establish a custom-built federal integrity commission drawing on the state’s experiences but with ‘a broader range’ of relevant functions.

The think tank, the Australia Institute established the National Integrity Committee to ‘advise on specific accountability reforms, including the establishment of a National Integrity Commission’. The committee published several briefing papers that included recommendations on a NIC design, based on comparable state agencies.

Days before the election, the Centre for Public Integrity published an open letter addressed to all political parties and signed by 31 retired judges arguing for a strong anti-corruption commission. The centre previously published a discussion paper comparing Australia’s existing state and territory ICACs and advocating for a similar federal body with the ability to:

• investigate conduct that affects the impartial exercise of public administration, including those outside the public service
• begin investigations (including own investigations) without satisfying a threshold of evidence
• hold public hearings if in the public interest
• make findings and report publicly.

The report argued that ‘comparing the features of existing state integrity commissions with the models proposed by the [Morrison] Federal Government, the ALP and Dr Haines reveals that the Government’s CIC would be the weakest and least effective integrity agency in the country’.

State and territory integrity commissions

Since the state and territory ICACs were established (see Table 1), there has been ongoing debate about their proper role and conduct. Criticisms have been raised, particularly in regard to the NSW ICAC, over the reputational harm inflicted through public hearings and that findings of corruption remain in place even if followed by acquittal in the criminal court.

Table 1: Current state and territory anti-corruption commissions

Source: compiled by the Parliamentary Library

In recent years the NSW ICAC, Victoria's IBAC and the Queensland CCC have faced amendments to their structure and scope. Most recently, in October 2021, the SA Parliament amended the Independent Commission against Corruption Act 2012 to limit the commission’s powers to investigate corruption, misconduct or maladministration and reduce its transparency.

Greens and independents

The Australian Greens and crossbenchers have made the most recent attempts to legislate for a federal anti-corruption commission- strengthening the parliamentary integrity framework, believing such major reforms should come from them. Greens senator, Larissa Waters, introduced the National Integrity Commission Bill 2018 (No. 2) which passed the Senate in September 2019 but lapsed at the end of the 46th Parliament. In October 2020 Helen Haines introduced the Australian Federal Integrity Commission Bill 2021 (to establish a federal ICAC largely modelled on the NSW ICAC) and Senator Rex Patrick introduced essentially the same Bill, the Australian Federal Integrity Commission Bill 2021 in October 2021. Dr Haines also reintroduced her Bill at this time but debate was denied and it lapsed when the House dissolved.

The Commonwealth Parliamentary Standards Bill 2020, introduced by Dr Haines in 2020, sought to establish a Parliamentary Integrity Adviser, Parliamentary Standards Commissioner and a parliamentary code of conduct. Previous Bills introduced by the Greens, including the National Integrity (Parliamentary Standards) Bill 2019 would have established an Independent Parliamentary Adviser.

Many current and incoming independent parliamentarians support Dr Haines’s Bill to establish an integrity commission with broad powers, including the scope for public hearings and a definition of corruption to potentially cover government ‘pork barrelling’. The new Albanese Government is also likely to negotiate with Senate crossbenchers regarding legislation on the NIC.

Coalition proposal

The former Coalition Government released its proposed model for a NIC in an exposure draft in 2018 and allocated $104.5 million over 4 years (including capital funding of $10 million) in the 2019–20 Budget.

However, the NIC contained in the exposure draft was widely condemned as ineffective with key stakeholders such as Transparency International Australia, the Accountability Round Table and the National Integrity Committee criticising several features. For example, its ability to conduct public hearings was inconsistent and required a ‘reasonable suspicion’ of criminality before it could begin an investigation. The more limited powers proposed for the public sector integrity division (covering parliamentarians and other public sector agencies) contrasted with more stringent provisions that would relate to the law enforcement integrity division (LEID).

The new Opposition Leader, Peter Dutton, has indicated that he supports a NIC and wants to work with the Dr Haines Bill.

Labor proposal

The Albanese Labor Government has committed to establishing ‘a powerful, transparent and independent National Anti-Corruption Commission (NACC)’ to be legislated by the end of 2022. Attorney-General Mark Dreyfus has indicated that the commission is going to be independent, powerful, and have the powers of a royal commission. The commission would: have the power to deal with serious and systemic corruption; be able to receive allegations from a range of sources; be able to, at its discretion, hold public hearings; and have retrospective powers.

The NACC would have broad jurisdiction to investigate serious and systemic corruption by Commonwealth ministers and parliamentarians, ministerial advisers, statutory office holders, government agencies and public servants. A new departmental taskforce within the Attorney-General’s Department will be established to develop policy options and consult with stakeholders while working closely with the Australian Commission for Law Enforcement Integrity.

However, Labor’s model has also been criticised, particularly for lacking detail in the form of principles rather than fully developed legislation. During the election campaign Labor had indicated that when it does legislate, the Bill will be extremely similar to the one independent Dr Haines introduced into Parliament. Dr Haines has suggested that she co-chair a joint select committee of the Parliament to work through the technicalities and allow various experts to make their views known. Labor is considering this proposal. One of the challenges facing the design of a NIC is balancing the strong powers of the body with the need to protect against reputational harm, respect for the rights of all, a focus on serious and systemic corruption, and ultimately the confidence of the public.

Further reading

Cat Barker, What Might a National Integrity Commission Look Like?, FlagPost (blog), Parliamentary Library, 18 April 2019.

AJ Brown et al., Governing for Integrity: a Blueprint for Reform: Draft Report, (Brisbane: Griffith University and Transparency International Australia, April 2019).

Senate Select Committee on the Establishment of a National Integrity Commission, Report (Canberra: The Senate, September 2017).

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