Australia’s performance against Anti-corruption treaty reviewed

Posted 09/07/2012 by Cat Barker

Australia signed the United Nations Convention against Corruption (UNCAC) in December 2003 and ratified it two years later.  A summary of the findings of the first review of Australia’s implementation of the UNCAC was released on 18 June 2012.  The review of chapters III and IV of the UNCAC coincided with the Australian Government’s development of the country’s first National Anti-Corruption Plan.  While the findings were largely positive, the reviewers also identified several challenges and areas of improvement.

The UNCAC, which was adopted by the United Nations General Assembly in October 2003 and entered into force in December 2005, is the most comprehensive international treaty on corruption.  Australia is one of 160 State parties to the UNCAC, which covers five key areas:
  • preventative measures (chapter II)
  • criminalisation and law enforcement (chapter III)
  • international cooperation (chapter IV)
  • asset recovery (chapter V) and
  • technical assistance and information exchange (chapter VI).

In 2009, the Conference of the States Parties to the UNCAC adopted a resolution establishing a mechanism to review and report on parties’ implementation of the UNCAC.  Under the Mechanism for the Review of Implementation of UNCAC, each party is reviewed by two other parties to the UNCAC, based on a self-assessment and a desk-based review, which may be supplemented by a country visit or joint meeting.  The first round of assessments covers chapters III and IV of the UNCAC, with the second to cover chapters II and V.  The review of Australia’s implementation of criminalisation and law enforcement and international cooperation measures was undertaken by the United States and Turkey, and was limited to measures in place at the federal level.

The summary of findings identified six successes and good practices in Australia’s implementation of the criminalisation and law enforcement requirements, relating to:
  • the breadth of the Commonwealth foreign bribery offence
  • the Commonwealth’s strong money laundering offences
  • the liability of all individuals for prosecution for corruption
  • the development and expansion of the federal non-conviction-based forfeiture regime (including provisions for unexplained wealth (UW) – though it should be noted that as at March 2012 the Commonwealth UW provisions were yet to be used) and
  • severe consequences for public officials who engage in corruption.

The four areas identified for improvement concerned:
  • the current ‘facilitation payment’ defence to the foreign bribery offence
  • the lack of a written policy on parole setting out factors for consideration
  • adoption and implementation of comprehensive legislative protections for whistleblowers and
  • continuation of a consultative process for the development of a national anti-corruption plan.

In terms of international cooperation, three successes and good practices were identified:

  • the Australian Federal Police’s (AFP) international and domestic cooperation and expertise in detecting and investigating corruption
  • the comprehensive range of tools available to investigate corruption and
  • the high quality of databases used to track extradition and mutual legal assistance requests.The reviewers encouraged Australia to continue periodically reviewing its policies and legislation to provide the widest measure of mutual legal assistance.

Whistleblower legislation has been a long time coming at the federal level.  The Australian Labor Party went to the 2007 election with a policy to introduce such laws.  The House of Representatives Standing Committee on Legal and Constitutional Affairs released its report on a preferred legislative model to protect public interest disclosures within the public sector in February 2009.  The Committee recommended the introduction of a Public Interest Disclosure Bill that would cover a range of disclosures, including those relating to corruption, as a matter of priority.  The Government accepted that recommendation in March 2010 and committed to introduce a Bill that year.  However, the Bill has yet to be introduced.

The facilitation defence to the foreign bribery offence may be raised where the benefit concerned was of a minor nature, the conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature, and an appropriate record was made and retained.  The Government is currently reviewing this defence, in accordance with a recommendation adopted by parties to the Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Officials in International Business Transactions (Anti-Bribery Convention) in 2009.

A matter not covered in the summary of findings, but raised in submissions to the review made by the Law Council of Australia, Queensland Law Society and the Accountability Round Table, is whether a federal anti‑corruption body should be established, akin to the Independent Commission Against Corruption in New South Wales and similar bodies in several other states (while the Attorney-General’s Department has not published the submissions it received, those referred to have been made public by the organisations themselves).  As outlined in the discussion paper on the National Anti-Corruption Plan, Australia currently adopts a ‘multi-agency’ approach to combating corruption at the federal level.  The Australian Commission for Law Enforcement Integrity (ACLEI) is responsible for preventing, detecting and investigating serious and systemic corruption issues in prescribed Commonwealth law enforcement agencies.  ACLEI currently has oversight of the Australian Crime Commission, Australian Customs and Border Protection Service and the Australian Federal Police.  The Minister for Home Affairs and Minister for Justice announced in April 2012 that ACLEI’s jurisdiction would be extended to also cover:

  • the Department of Agriculture, Forestry and Fisheries – Biosecurity Staff (formerly the Australian Quarantine and Inspection Service)
  • the Australian Transaction Reports and Analysis Centre and
  • CrimTrac.

The proposal to establish a broader integrity and anti-corruption agency with oversight of the whole Commonwealth public service, and possible also Parliamentarians, has been around for some time.  For example, it was recommended in a joint Griffith University and Transparency International Australia (TIA) report released in 2005, ahead of the establishment of ACLEI.  The issue was also considered in the context of a Parliamentary committee inquiry into the operation of the Law Enforcement Integrity Commissioner Act 2006 completed in July 2011.  In its final report, the Parliamentary Joint Committee on the ACLEI did not come to a conclusion on the matter, instead recommending that the Government review the Commonwealth integrity system, with a particular focus on the merits of establishing an agency with anti-corruption oversight of all Commonwealth public sector agencies.

In its February 2012 response, the Government noted the recommendation and stated it would focus on implementing measures already underway before deciding on whether to conduct a review, and noted that based on the available evidence ‘there is no convincing case for the establishment of a single overarching integrity commission’ (p. 8).  The proposal is one the Government will need to grapple with in the context of the development of its National Anti-Corruption Plan.  While not necessarily advocating for a single agency, the TIA’s submission to the consultations (available on its website) encourages the Government to ensure that whatever model is taken up, it provides effective capacity to prevent, detect and investigate corruption across all areas of Commonwealth responsibility and employment.

In addition to being assessed on its implementation of the UNCAC, Australia is currently undergoing its third formal evaluation against the Anti-Bribery Convention.  A Background Note published by the Parliamentary Library in February 2012 outlines the results of previous evaluations and provides an assessment of how Australia may fare this time around.

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