NSWCCL has formally argued its strong support for a national anti-corruption agency in Australia.
We put our views in a submission to the current Senate Select Committee Inquiry on a National Integrity Commission (NIC) which continues the work of the 2016 Inquiry on the same topic: i.e. should Australia have a national anti-corruption body like the NSW ICAC and similar bodies in other states?
As a civil liberties organisation NSWCCL has previously opposed anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. We have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia: undermining the integrity of our political system, distorting the policy making process, diverting resources from public good objectives and generally undermining public trust in our political class, governing institutions and public administration.
If not more effectively checked, corruption poses a threat to democratic values and processes–including individual rights and liberties. From a civil liberties perspective, the balance between greater public good and greater public harm has shifted. In our view the Government's claim that its current 'multi-agency' approach is effective is demonstrably wrong.
If the public interest is to be protected against the corrosive effects of serious and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers- albeit with proper constraints and safeguards- is necessary and proportionate.
NSWCCL's support is absolutely dependent on strong constraints and safeguards that establish the optimal balance between individual rights and the effectiveness of the NIC in exposing corruption for the public good. Getting this balance right has been well traversed in NSW since ICAC's establishment in 1988 and subsequently in other states as the operation of the state anti-corruption bodies has come under much scrutiny and review. The Select Committee has a wealth of state level experience on which to develop its recommendations.
Transparency and public hearings
Central to our support for a NIC was that it have the power to hold public hearings of its investigations. This will be one of the most controversial issues to be determined- if the Committee recommends the establishment of a NIC.
There is a good reason for this level of controversy. There is a serious tension between the potential for unfair reputational damage for individuals being publicly investigated without the protection of a fair trial before a court - versus the undoubted public good that flows in many ways from open investigation and exposure of corruption in these hearings.
NSWCCL considers that ICAC's use of public hearings has overwhelmingly benefited the public good. It has also provided proper transparency to ICAC's investigations which, by allowing public scrutiny of part of ICAC’s operations, provides an important dimension of oversight of the agency. It has also been hugely important in exposing the level and nature of corruption in NSW which is a positive in itself- but also generates much needed pressure on Governments to take appropriate anti-corruption action.
The public hearings, in so far as they have built considerable community support for ICAC, also provide some level of protection from inappropriately motivated Government interventions around ICAC’s powers.
NSWCCL made eleven formal recommendations to the Select Committee which are summarised below:
- stronger freedom of information and whistle-blower protection laws and a significant reduction of current secrecy laws and provisions relating to public administration are integral to a credible and effective national anti-corruption strategy
the Committee of Inquiry affirms the urgent need for a broad based national anti-corruption agency and recommends that the Government take action to establish it as quickly as possible.
- further work through COAG to develop a comprehensive national framework and strategy to address corruption and assess the nature, extent and impact of corruption in Australia is essential. However, this ongoing project should not delay the threshold decision to establish a broad based national anti-corruption agency.
- a further opportunity for public consultation and feedback should be provided to allow a focused consideration of the detailed proposal. This could best be achieved through a draft consultation bill
the NIC have jurisdiction across the totality of national public administration including all public service agencies, public sector entities outside the public service, Federal Parliament including ministers and their staff, members of Parliament and the federal electoral and funding systems.
- the NIC should have the power to investigate serious and/or systemic corrupt conduct by a person not a public official when the corrupt conduct will have an adverse effect on public administration. It should not be a requirement that the conduct affects the propriety or probity of a public official in the exercise of an official function.
the National Integrity Commission have the power to hold public hearings as part of its investigations. The decision to exercise this power in individual investigations should be decided on the basis of public interest and fairness criteria similar to those in section 31 of the ICAC Act (1988) NSW.
The power to hold public hearings should be discretionary on the basis of consideration of the specified criteria and procedural guidelines and should not be constrained by specification of either public or private hearings as the default position.
The Select Committee has held public hearings in Sydney and Melbourne. It will hold further public hearings in Canberra in June and will report to parliament on 15th August.
The establishment of a national anti-corruption body has been a live issue-with multiple reviews- in federal Parliament for a number of years. It is just possible that the current environment might bring sufficient pressure to bear on the Coalition for action to be taken.
Powerful arguments and strong evidence supporting the urgent need for such a body have been presented to this Inquiry and its immediate predecessor in 2016 by many of the submissions from experts and key organisations -eg: the Law Council of Australia, Transparency International Australia and the ACTU.
It is not likely that a refusal to act by the Government will be the end of the matter.
Dr Lesley Lynch