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The ACLEI model and the broader integrity system
This chapter examines the current approach to integrity assurance across
the public service, with a focus on how ACLEI does and could relate to the
broader integrity system.
It commences with a summary of evidence relating to definitions of
corruption, particularly in the context of the LEIC Act, before moving to an
examination of the approach taken to integrity assurance across the public
service, including the potential for a more focused corruption fighting
approach. Though not explicitly within the inquiry's terms of reference, due to
the amount of evidence presented by witnesses and submitters, the case for a
Commonwealth-wide anti-corruption commission is considered.
The committee makes a number of recommendations that would enhance
overall Commonwealth public sector integrity, through further definition of
ACLEI's relationship with other agencies with an integrity and accountability
What is corruption?
While at superficial level there is a common understanding of what
corruption means, it is a concept that continues to be contested and explored
by anti-corruption practitioners. There is no internationally agreed definition
of corruption; nor is there consensus about the range of activities that are
seen to constitute corrupt conduct. Professor AJ Brown notes that in spite of
an 'unprecedented demand for a single, universal understanding of the idea of
corruption, capable of spanning international, cultural and religious borders',
no such objective has been achieved.
Transparency International provides a broad definition of corruption as
'the abuse of entrusted power for private gain'.
This characterization reflects a trend to 'strip the definition of corruption back'
leaving open to 'legislators, law reformers and social agents' the task of
articulating a more specific definition of corruption and corrupt behaviour
that is tailored to the particular political, economic and cultural context in
which the definition is formulated.
Corruption within the law
ACLEI has observed that within the law enforcement context 'corruption
involves improper actions or abuse of power and trust by an official'. Extending this
understanding ACLEI stated:
[Corruption] entails conduct that undermines or misuses the
legitimate functions of a law enforcement agency, or of a position within an
agency, for criminal, political or personal purposes.
Section 6 of the LEIC Act provides a definition of corrupt conduct
(although not of corruption per se) as follows:
that involves, or that is engaged in for the purpose of, the staff member
abusing his or her office as a staff member of the agency; or
that perverts, or that is engaged in for the purpose of perverting, the course
of justice; or
that, having regard to the duties and powers of the staff member as a staff
member of the agency, involves, or is engaged in for the purpose of, corruption
of any other kind.
Comprehensive examples of behaviour that may constitute corruption
within the law enforcement context are listed at Appendix 4. This includes
- illegitimately seeks to gain profit or benefit for self or
- uses proper powers and discretions for an improper purpose;
- uses law enforcement functions to support or assist criminal
- misuses information to support or assist criminal activity;
- sabotages the impartial detection, investigation and prosecution
- may assist infiltration of an agency by criminal or corrupt
- places at risk the impartial function of an agency; or
- facilitates corruption.
According to ACLEI, the legal definition of corrupt conduct within the
LEIC Act is deliberately broad in order to accommodate the evolving nature of
the concept of corruption and corrupt activity. As ACLEI submitted:
‘Corruption’ is a nebulous term, and is frequently
misunderstood and misapplied. Defining the term often seems to be
counter-productive. ACLEI uses a descriptive approach to give the term meaning
in the LEIC Act context...
Identifying what makes conduct corrupt rather than
simply unlawful or unethical is difficult, and it is important to
consider individual circumstances. Corrupt conduct will often involve a breach
of the law, but not all breaches of the law involve corrupt conduct. A person
could also act lawfully, but corruptly. A person’s intention in acting in a
particular way is relevant, but is not always the determinative factor in
deciding if conduct were corrupt...
The LEIC Act definition is deliberately broad, because
corruption may involve a broad range of misconduct or behaviour, and because
corruption is adaptable – it changes to take advantage of new opportunities.
However, Mr Howard Whitton, Fellow, ANZSOG Institute for Governance, was
critical of the current broad definition on the grounds that it may not be
easily understood without legal advice. This lack of specificity could mean
that non-experts may not approach the Integrity Commissioner or ACLEI with
Appearing before the committee in March 2011, Mr Whitton argued:
[T]he definition of corruption in the LEIC act is very vague.
In fact, corruption itself is not defined. Corrupt conduct is defined in terms
of abuse of office. There are difficulties with that, in that most public
servants these days, certainly in the Commonwealth, do not occupy an office.
Further, there is the difficulty when it comes to explaining
to the public at large, either in terms of explaining ACLEI’s jurisdiction or
in a training program, for example, what corruption is.
Mr Whitton instead favoured the more specific language used to describe
corruption in the Independent Commission Against Corruption Act 1988
(NSW). This definition, reproduced at Appendix 5, includes 25 matters that may
comprise corrupt conduct. Corrupt conduct itself is defined as:
(a) any conduct of any person (whether or not a public
official) that adversely affects, or that could adversely affect, either
directly or indirectly, the honest or impartial exercise of official functions
by any public official, any group or body of public officials or any public
(b) any conduct of a public official that constitutes or
involves the dishonest or partial exercise of any of his or her official
(c) any conduct of a public official or former public
official that constitutes or involves a breach of public trust, or
(d) any conduct of a public official or former public
official that involves the misuse of information or material that he or she has
acquired in the course of his or her official functions, whether or not for his
or her benefit or for the benefit of any other person.
Mr Whitton contended that the specification of categories of corrupt
conduct is more useable and, in particular, encourages whistleblowing as
intending whisteblowers can be more certain about whether their actions are
protected by the legislation.
However, Professor John McMillan, while in favour of further development
of the definition of corruption, contended that the New South Wales definition was
perhaps overly prescriptive:
The ICAC Act has a definition of corruption and there are
similar definitions in the legislation establishing the counterpart Western
Australian and Queensland bodies. There is a deal in common in those and with
the United Nations and other definitions, such as breach of trust, perversion
of the course of justice, bribery and the like, but there are other areas of
difference...[I]t seemed to me that the definition of corruption in the New
South Wales ICAC Act went further than the ACLEI Act, and further than I think
it should go as well. Again, it bolsters that need for Commonwealth purposes to
define what we mean as corruption in that context.
The Public Service Commissioner, Mr Stephen Sedgwick, responding to
arguments for an extension of ACLEI's jurisdiction, noted that the broad
definition of corruption encompassed a range of behaviour that they did not
perceive to be corruption:
On the evidence that is available to us, it just does not
seem that there is a case for extending the purview of ACLEI, particularly in
circumstances where corruption is such an ill-defined term. You can see that in
some of the material that has been presented to you. You have been given
information that includes as corruption stuff that we just regard as being poor
practice and bad management, and it needs to be dealt with in that way.
The Commonwealth Ombudsman, Mr Allan Asher commented that there were
already definitions of matters such as fraud, misuse of information and
improper disclosures. Mr Asher did not see the need for a more specific
definition of corruption, stating:
What you are looking at instead is a range of behaviours and
outcomes which are unacceptable and unwanted. For example, in our own area we
often speak about administrative deficiency. We do not find a need to have a
clear legal definition of that. Instead, we just describe administrative action
that fails to reach its objective, is unfair or unjust or sometimes unlawful.
Delineating corruption issues
The definition of corruption and what constitutes corrupt conduct is
also important for government agencies both involved in and subject to
integrity oversight. A vague definition can complicate both compliance with
integrity measures and jurisdictional delineation between integrity agencies.
For example, the AFP submitted that the current broad definition of corrupt
creates an element of uncertainty in relation to matters that
the AFP is obliged to refer to the Integrity Commissioner.
Commander Mark Walters from the AFP outlined the context within which
this submission was made:
[W]here there has been a bit of, shall we say, tension is a
view around what should be notified to the Integrity Commissioner in terms of
conduct and what might fall within that broader definition of corruption. Some
things are quite clear and fall within the definition of engaging in corrupt
conduct. But there is other conduct that we have referred to us in Professional
Standards, that probably falls into a grey area, and there would be some
interpretation around whether it is in fact conduct that would require
notification to the Integrity Commissioner or it would be investigated by AFP
Commander Walters noted that there would be advantages and disadvantages
in tightening up the definition in the LEIC Act and stated that the development
of a 'framework' for interpretation agreed between all parties would be the
best course of action:
[I]f we can in a collegiate way come up with a framework that
allows us to give interpretation to corruption and what should be notified,
that is probably the best outcome for the current situation.
The ACC noted the benefit of the flexibility inherent in the current
broad definition, commenting:
We have a view that the way the act is currently constructed
allows us to make well judged decisions about what to refer there without being
overly prescriptive. We are working with ACLEI and there is some work going on
around definitional matters and how you would do that. I think that everyone
agrees that it is important not to be too prescriptive because the exposure we
have had so far suggests that there is no pattern, general theme or trend.
Things tend to emerge quite differently each time. It is a balance between what
the right definition is and what is overly prescriptive, so that some stuff
will not be missed out. It is a very delicate issue, but one that we all focus
on. Personally, I am inclined towards a broader interpretation from the
agency’s referring perspective...
The Commonwealth Ombudsman's Office reported in 2009 that it had liaised
with ACLEI to develop an agreed definition of corruption but, at that time, a
shared definition had not yet been achieved. The Ombudsman's office explained
Defining what falls within the term would help to delineate
the jurisdictional boundaries between the ACLEI, the AFP, the ACC and the
Ombudsman, and to define the duty of the AFP and ACC to notify the ACLEI of
Reflecting on his former role as the Commonwealth and Law Enforcement
Ombudsman, Professor McMillan informed the committee that:
I see it as important to expand on the rather open-ended
definition of corruption issues given in the legislation. That definition is
important for delineating the responsibilities of different agencies.
Professor McMillan recommended that the agencies concerned, including
ACLEI, the Commonwealth Ombudsman, the AFP and the ACC should be tasked with
developing a draft definition or draft policy on corruption, with which they
could then consult with the Australian Parliament.
The committee notes the arguments above both for and against the
development of a more specific definition of corruption. While understanding
that a broad definition allows for flexibility, the committee is of the opinion
that a more detailed and comprehensive definition of corruption is required. The
committee considers that further definition of the term would provide greater
clarity to the anti-corruption work conducted by ACLEI, while serving to more
effectively delineate corruption issues from issues better handled by other
The committee considers that as ACLEI has now been in existence for four
years, its understanding of corruption in the context of law enforcement has
developed to a point that allows further definition of the term.
The committee commends the work undertaken to-date by the various
agencies involved to better clarify the behaviours and actions that constitute
corrupt conduct. However, the committee would like to see this work concluded,
in the form of a more detailed and comprehensive agreed definition of
For this reason, the committee recommends that the Integrity
Commissioner, the Commonwealth Ombudsman, the Public Service Commissioner, the Auditor-General
and the Attorney-General's Department collaborate to develop a more detailed
and comprehensive definition of corruption for the purposes of the LEIC Act. The
ICAC definition together with ACLEI's examples of corrupt conduct as set out in
paragraph 3.8 above and Appendix 4 below, would be a suggested starting point. A
draft paper outlining a proposed new definition of corruption should be
publicly released for consultation no later than November 2011 to allow for the
amendment of the definition in the LEIC Act by June 2012. The consultation
should include this committee.
3.27 The committee recommends that the Integrity Commissioner, the
Commonwealth Ombudsman, the Public Service Commissioner, the Auditor-General
and the Attorney-General's Department develop a more detailed and comprehensive
definition of corruption for the purposes of the Law Enforcement Integrity
Commissioner Act 2006. A proposed definition should be circulated for
public consultation, including this committee, no later than November 2011.
Establishing and implementing a sufficiently detailed corruption
definition would also provide a stronger basis for the reporting and
measurement of corruption issues. An appropriate definition may have
applicability to the broader Commonwealth integrity system discussed below.
Approaches to integrity assurance
Mr Howard Whitton reported to the committee that there is a diversity of
ways in which corruption is approached internationally, which could inform
Australia's approach. However, as he explained:
We tend to adopt uncritically the conceptualisation favoured
under the influence of the World Bank and the OECD in the Western world, which
is characterised by a disease model in which corruption is regarded as akin to
a mass infection of some kind for which one day some magic cure will be
discovered by a scientist and all will be well. This abstraction can have
rhetorical value, but it seriously misleads thinking about policy responses to
corruption as it really is. Further, the immunisation model is seriously
flawed. The immunisation model states broadly, as we have heard, that you make
some changes in the system at the top of the culture and you let the culture
grow with this magical resistance to corrupt conduct within its structures: it
does not happen.
By contrast, in 2009 UN Secretary-General Ban Ki-moon warned
specifically against the disease model. He said:
'... corruption is not some vast impersonal force. It is the
result of personal decisions, most often motivated by greed.'
The alternative conception for thinking about corruption
might be called the ‘termite infestation’ model, in which corruption is
regarded as opportunistic, individualised, active and deliberately covert. When
well-resourced and organised, corrupt conduct by individual officials can feed
organised crime, defeat the rule of law, support state capture, create porous
national borders, undermine markets and the provision of state services,
compromise the integrity of public institutions, support trafficking and
terrorism, sustain money laundering and encourage clienteleist networks of patronage
and mutual obligation for mutual benefit in a self-enforcing system. This is
the model, I suggest, that we need to take seriously and to think about when we
talk in terms of ACLEI and its possible role in preventing and detecting
corruption in Australia.
For this reason, Mr Whitton advocated the development of effective
detection and prevention systems, sanctions, targeted pro-integrity policies
and practices and institutional incentives that contribute to a
corruption-resistant ethos at the institutional level.
The Commonwealth Ombudsman informed the committee that integrity systems
could adopt one of three models. A common one was a law enforcement approach
that received allegations and investigated accordingly.
This reactive model is represented in several state anti-corruption bodies.
A second model involved a focus on prevention and education. This model emphasises
the development of internal governance in order to mitigate potential
A third possible model was a hybrid of the first two. As the
Commonwealth Ombudsman saw it, ACLEI itself represented the hybrid approach,
ACLEI...tends to describe itself as a law enforcement agency,
which would be closer to [the first model], although it does have some other
roles as well. The initial conception some years ago would have had it more at
that second level. Perhaps if we were to look at it now we would say that it is
closer to the third but sees itself more as the first.
The committee notes the importance of supplementing an investigative
capacity that can deal with allegations of corruption with a prevention model
that strengthens governance and reduces corruption incentives. As Mr Whitton
described it, 'good people, without good institutions, will not succeed; and
good institutions, without good people, will fail.'
With this in mind, the committee reiterates its support for a risk-based
approach to integrity, noting that wherever incentives for corrupt behaviour
exist, so too will that risk. The committee prefers an integrity approach that
assumes the existence of corruption and acts accordingly.
The importance of enhanced
The committee accepts statements by both the Public Service Commissioner
and the Law Enforcement Integrity Commissioner that there is no evidence of
serious or systemic corruption in the Australian Public Service (APS). For
instance, the Public Service Commissioner stated:
There are only a small number of corruption cases reported
annually across the Australian Public Service and there is no evidence that
corruption within the meaning of the LEIC Act—that is to say, bribery or
perverting the course of justice—is a significant issue in the APS.
The Integrity Commissioner agreed with this assessment, stating:
The question is: is there corrupt conduct that is going
unaddressed? I think the evidence of the Public Service Commissioner is
correct. We have instances, but we do not have across-the-board, systemic
serious issues in the Public Service, in the same way that the perception was
for the agencies under ACLEI’s jurisdiction, the initial ones anyway, and my
The Integrity Commissioner also noted however, that the reality of what
ACLEI had found since its establishment did not accord with expectations prior
to establishment. Rather than a few, serious issues, the experience of ACLEI
had instead been the notification and referral of many, less serious issues. As
the Integrity Commissioner explained:
There was initial expectation in ACLEI’s workload that it
would not be great. Indeed, the thought was that there might be three or four
investigations per year that ACLEI would be engaged in. In fact, it has turned
out to be quite the contrary. The number of corruption issues received and
investigations made is significant and the numbers far exceeded the
expectation. Such investigations that ACLEI undertakes are mostly complex and
difficult, but they would be described as being of middle order and not of
royal commission significance. They are hard targets nevertheless. So here was
ACLEI being established with the thought that it would be a standing royal
commission dealing with a few very, very serious measures, and that has not
proved to be the case. In other words, the reference to the perception that the
bodies currently did not have a significant problem with corruption has been
found to be correct in our experience.
As discussed in the committee's inquiry into law enforcement integrity
models, a distinction exists between complaint handling bodies and
anti-corruption bodies. The primary purpose of (public sector) complaint
handling bodies is to investigate and address complaints reported by individual
citizens who believe they have been treated unfairly, unreasonably or
improperly by a government department or agency. This is the principal role of
the Commonwealth Ombudsman.
Law enforcement and public sector anti-corruption or integrity agencies
increasingly focus on serious misconduct and corruption. Through corruption
detection and investigation they endeavour to expose the truth in order to curb
and prevent corruption. Through risk analysis, research and education they aim
to raise standards of integrity.
ACLEI fits into this second category.
As noted by Professor John McMillan, former acting Integrity
Commissioner and former Commonwealth Ombudsman, these two types of agencies
require a different 'skill set'.
Further, the primary focus of a complaint-handling body is the complainant. The
information and lessons learnt from a complaint are important but secondary.
The focus of an anti-corruption agency is the quality of the information or
intelligence and its contribution, ultimately, to preventing corruption. In
this scenario the informant is important but secondary. The capacity to detect
potential corruption is paramount.
Mr Howard Whitton was critical of the current ability to detect
corruption in the broader public service and questioned the reliance on
existing statistics that suggested little to no systemic corruption:
At the national level there is still no single Commonwealth
institution with a responsibility for detection and prevention of corruption
other than crime in the terms envisaged by the UN Convention against
Corruption, which Australia has ratified but as yet has not...complied with.
This point was echoed by Professor Tim Smith, Chair of the
Accountability Round Table, who noted the following:
It seems to me you come to the point where you say, human
nature being what it is, there will always be a corruption problem in
government. It will surface from time to time, but there will always be a
problem. The conclusion I came to was that what you are looking at is a risk
management problem. I was interested to hear the head of ACLEI talking about
their approach, which is a risk management approach. I think that is the only
way you can approach it. It is unrealistic to suggest that the test of whether
you do anything is whether there is corruption, because it is going on while we
speak and we do not know about it. That is the harsh reality.
The committee is therefore of the opinion that, while there is little
evidence to suggest any systemic corruption in the Australian Public Service,
this should not preclude the existence of an integrity system that is proactive
in defending integrity, with enhanced detection methods that do not rely on
accidental or incidental discovery of corrupt behaviour. As noted by the
Commonwealth Ombudsman, Mr Allan Asher:
[W]hile ever there is such a large range of Commonwealth
programs, and programs where the Commonwealth is directly funding activities,
there are incentives around for corruption, and corruption really results from
incentive plus opportunity. Those incentives and opportunities are clearly
increasing quite considerably.
In the next section, the committee examines the current integrity
arrangements covering the Australian Public Service, with a view to suggesting
improvements to the system's ability to be proactive in discovering corruption.
Paramount in this endeavour is building better links between that system and
The Commonwealth integrity system
As discussed by a number of witnesses, the Commonwealth integrity system
is based on a multi-agency model, in which a number of agencies play a different
role in encouraging and policing integrity in the Commonwealth public sector.
The committee notes that whilst each of the agencies involved play an important
role in promoting integrity and countering misconduct, corruption and
maladministration, this multi-agency 'model' is largely a product of history
and not of design.
The current multi-agency approach
The current Commonwealth integrity framework could be considered to be
led by a number of agencies, including at minimum the Australian Public Service
Commission (APSC), the Commonwealth Ombudsman, the Australian National Audit
Office (ANAO) and ACLEI.
APS values and the Code of Conduct
The APSC informed the committee that the main integrity framework
governing the conduct of Australian Public Service employees involved an ethical
construct using the APS Values and the Code of Conduct. As the Merit Protection
Commissioner, Ms Annwyn Godwin explained:
This framework, which is set out in the APS Values and Code
of Conduct, comprises a number of elements which require APS employees to avoid
actions which are, or could be perceived to be, corrupt. The values and the
code require APS employees, for example, to behave honestly and with integrity,
make proper use of Commonwealth resources and comply with all applicable
Australian laws. These elements are quite clear in their intent as they are
legislatively based, legally binding, nondiscretionary and can lead to real
penalties if not properly observed. The penalties can range from a reprimand, a
reduction in salary through to reduction in classification or, ultimately,
termination of employment.
The elements of the Code of Conduct most relevant to corruption, include
the obligations to:
- behave honestly and with integrity in the course of APS
- when acting in the course of APS employment, comply with all
applicable Australian laws;
- disclose, and take reasonable steps to avoid, any conflict of
interest (real or apparent) in connection with APS employment;
- use Commonwealth resources in a proper manner;
- not make improper use of:
(a) inside information, or
(b) the employee's duties, status, power or authority, in order to gain, or
seek to gain, a benefit or advantage for the employee or for any other person.
The APSC conducts extensive training within Australian Public Service
agencies, promoting an ethical culture through observance of the APS Values and
Code of Conduct. As Ms Karin Fisher, APSC, observed:
We do have a wealth of education tools. We have an ethics
website; there are some educational materials there. We also work very closely
with the other parts of the Public Service Commission responsible for
coordinating service-wide training and development, and we have public programs
on ethics—or, if agencies would like something more tailored, we have a panel of
consultants that we go to and use for tailored programs, as well as having some
education materials that agencies can take and use and adapt themselves. But
that is a broad education role in terms of ethics generally, particularly in
relation to the APS Values and Code of Conduct, rather than corruption
The committee naturally supports the promotion of the APS Values and the
Code of Conduct and accepts the cultural approach to encouraging ethical
behaviour. However, the committee is not convinced that the promotion of the
APS Code of Conduct by the APSC of itself effectively addresses corruption risk
for the following reasons.
The committee notes that the Code of Conduct only applies to a portion
of Commonwealth public sector staff. Furthermore, the Code of Conduct, while an
admirable statement of values, may be limited in its usefulness due to the
generality of some provisions, such as the requirement to 'behave honestly and
with integrity', or to 'use Commonwealth resources in a proper manner'.
In addition, the committee takes into account the comment of the Public
Service Commissioner to the effect that conduct regarded by ACLEI as
potentially problematic vis a vis corruption risks may be regarded by the APSC
as simply poor practice and bad management.
The committee noted evidence gathered during this inquiry and previous
inquiries that instances of misconduct may be indicative of more serious
The committee has heard from witnesses such as the Commonwealth
Ombudsman that the Australian Public Service is subject to increasing incentives
and opportunities for corruption to occur at the Commonwealth level.
The committee considers that ACLEI, with its specialised focus on corruption,
particularly serious and organised criminal networks, has a role to play in
enhancing the training that is provided to public servants as part of its
corruption prevention role. The committee is concerned that under the terms of
the LEIC Act as it currently stands, ACLEI is not able to contribute this
The committee's interim report addressed ACLEI's ability to proactively
engage in corruption prevention measures, noting concerns extending back to the
Senate Legal and Constitutional Legislation Committee's inquiry into the bill
that established ACLEI.
The committee reiterates its comments made in the interim report. It
considers it essential that ACLEI continues and expands the range of corruption
detection and prevention activities currently undertaken. In the interim
report, the committee recommended the inclusion of explicit corruption
detection and prevention functions under section 15 of the LEIC Act. This
recommendation is entirely consistent with the objects of the LEIC Act, which
have not been matched by appropriate legislative functions to date.
As noted in Chapter 2, ACLEI has proposed a third tier jurisdiction
including not just law enforcement agencies, but all public service agencies.
ACLEI would provide corruption prevention support to this third tier
jurisdiction. Specifically, it would have an education function in relation to
these agencies, providing corruption prevention advice and conducting awareness
raising about corruption risks.
The committee sees value in this proposition as it will strengthen ACLEI's
prevention function, in accordance with previous recommendations.
However, the committee has two main concerns with such a proposal.
Firstly, an expanded education role for ACLEI encompassing the entire public
service could divert resources away from ACLEI's investigatory functions and
its primary focus on law enforcement. Secondly, the committee accepts arguments
made by the Public Service Commissioner regarding the need to maintain a
coordinated approach to public service-wide education and training. As the
Public Service Commissioner noted:
The ethical framework within which the Public Service
operates is very broad. The messages that we are sending out are not simply
about breaches of the law; our messages are about doing the right thing. It is
an ethical construct that is much bigger than a particular focus on corruption.
It covers corruption, but it is much bigger than that.
Mr Sedgwick also stated:
One of the important things there is to minimise the number
of separate messages being sent. You confuse people when you send messages that
appear to be overlapping and kind of unclear. The code of conduct makes it
absolutely crystal clear. If you act illegally or abuse power you are in breach
of the code of conduct. That is a serious issue. We argue you do not really
need another agency to say exactly the same thing.
Furthermore, the committee does consider that the broader public service
should be able to benefit from ACLEI's specialised knowledge and experience
relating to corruption. The Integrity Commissioner informed the committee that
ACLEI already worked with APSC's Ethics and Advisory Service in order to
provide input based on its anti-corruption experience.
The committee is encouraged by this and would like to see such endeavours
continue on a formal basis.
The committee therefore recommends that, rather than establishing a
third tier of jurisdiction as proposed by ACLEI, that the APSC work together
with ACLEI to inform the education and training that it provides to public
servants. Such education and training should include the risks of infiltration
or corruption of public servants by serious and organised criminal networks,
even outside the realms of law enforcement.
3.63 The committee recommends that ACLEI and the Australian Public Service
Commission continue to collaborate in the development of ethics training
provided to public servants to include corruption prevention using ACLEI's specialised
experience and knowledge.
Investigation of breaches of the
Code of Conduct
The heads of Commonwealth agencies have primary responsibility for
putting in place systems and processes within their agency to ensure employees
understand and carry out their responsibilities under the code of conduct and
relevant legislation. Under the Public Service Act, they must also establish
procedures for determining breaches of the code of conduct.
The APSC supports agency heads through the setting of standards and the
issuance of guidance material.
The Public Service Commissioner also has evaluation and inquiry
functions as follows:
- to evaluate the extent to which agencies incorporate and uphold
the APS values;
- to evaluate the adequacy of systems and procedures in agencies
for ensuring compliance with the Code of Conduct;
- to inquire into reports made to the Commissioner as mentioned in
section 16 (whistleblowing reports);
- to consider and report to the Public Service Minister on any
matter relating to the APS, including such a matter referred to the
Commissioner by the Public Service Minister;
to inquire into alleged breaches of the Code of Conduct by Agency
Heads and report to the appropriate authority on the results of such enquiries
(including, where relevant, recommendations for sanctions); and
- to develop, promote, review and evaluate APS employment policies
To support these functions, the Public Service Commissioner is able to
conduct special inquiries, with the power to compel witnesses to give evidence
and to produce documents. However, these powers are for the purpose of an
administrative inquiry and the evidence gathered is not generally admissible in
The committee notes that these evaluation and inquiry functions,
including the focus on ensuring the adequacy of procedures and the Ministerial
reporting function, mirror to an extent ACLEI's ongoing brief to improve law
enforcement agency procedures. In ACLEI's case, the focus is on improving
procedures in order to resist corruption and strengthen integrity assurance.
The committee therefore encourages an increased dialogue between the
Integrity Commissioner and the Public Service Commissioner to ensure that
ACLEI's specialised knowledge regarding corruption risk, particularly in regard
to the potential for infiltration of the public service by organised crime, is
shared with the APSC and informs their work in strengthening public service
Treatment of serious issues
Where an employee's behaviour may be both a breach of the Code and a
serious criminal offence the matter is discussed with the relevant police
force, generally the AFP, who may prepare a brief of evidence for the Director
of Public Prosecutions.
As the Public Service Commissioner, Mr Stephen Sedgwick noted:
Investigations that raise a question of serious corruption or
a breach of the criminal law are usually referred to the police. In some larger
agencies they might be investigated by internal fraud units. In either case the
outcome could involve both a criminal conviction and a sanction for the breach
of the code of conduct.
The committee considers that the current arrangement, whereby the AFP
are used in the investigation of potentially criminal behaviour is appropriate.
However, the committee is also of the view that in certain circumstances,
serious potential corruption cases could be referred to ACLEI.
This would be beneficial due to ACLEI's experience in dealing with
corruption issues and corruption risk. Furthermore, involvement of ACLEI in
such cases, which would be rare based on the statistics provided by the APSC,
would contribute to ACLEI's own knowledge base regarding corruption risk in
The Public Service Commissioner, while arguing against extending ACLEI's
jurisdiction across the public service, did note the possible attractiveness of
being able to involve ACLEI in the investigation of agencies outside its formal
jurisdiction but with law enforcement functions.
...I am quite attracted to this notion. If I was an agency
head, for example, and parts of me were in the law enforcement business and if
I was investigating a case and thought I needed some help, to have the option
to go to ACLEI for forensic assistance would actually be a sensible option to
have. But that is not the same thing as saying that ACLEI should conduct all of
their corruption investigations, particularly if that is an ill-defined term.
3.73 The committee recommends that the Law Enforcement Integrity Commissioner
Act 2006 be amended so as to provide a mechanism by which the Public
Service Commissioner, with the consent of the Integrity Commissioner, could
request assistance, including on behalf of any head of a Commonwealth agency,
in investigating a serious corruption issue. Such a request would be made after
consideration of whether ACLEI's unique experience and powers meant that ACLEI
could provide greater investigatory value than the Australian Federal Police.
Furthermore, to avoid overburdening ACLEI to the detriment of its primary law
enforcement focus, such an arrangement should be funded by the requesting
The committee considers that this recommendation will enhance the
existing Commonwealth integrity system. However, the committee notes that it is
potentially a half-way measure between the existing system, and a future
Commonwealth-wide integrity agency. The possible establishment of such an
agency is discussed below.
Commonwealth Fraud Control
In addition to a reliance on the Code of Conduct, the Commonwealth
integrity framework also includes the Commonwealth Fraud Control Guidelines. The
Guidelines place obligations on agencies and their CEOs in relation to fraud
risk assessments, fraud control plans, awareness and training, handling of
fraud cases and reporting.
The Commonwealth Guidelines apply to all agencies covered by the Financial
Management and Accountability Act 1997 (FMA Act) and any bodies subject to
the Commonwealth Authorities and Companies Act 1997 (CAC Act) for which
the Finance Minister has made a General Policy Order in accordance with section
48A of the CAC Act.
As noted in the interim report, the committee is concerned that the
understanding of what may constitute corrupt behaviour in the public sector has
been inadvertently limited by the focus on fraud control. At the time the
interim report was tabled, the Commonwealth Fraud Control Guidelines defined corruption
as a subset of fraud as follows:
For the purpose of the Commonwealth Fraud Control Guidelines,
fraud against the Commonwealth is defined as: Dishonestly obtaining a benefit
by deception or other means.
This definition includes:
- obtaining property, a financial advantage or any other benefit by
- causing a loss, or avoiding or creating a liability by deception;
- providing false or misleading information to the Commonwealth, or
failing to provide information where there is an obligation to do so;
- making, using or possessing forged or falsified documents;
- bribery, corruption or abuse of office;
- unlawful use of Commonwealth computers, vehicles, telephones and
other property or services;
- relevant bankruptcy offences; and
- any offences of a like nature to those listed above.
However, the definition of fraud has changed in the revised guidelines
issued in March 2011. Corruption is no longer described as a subset of fraud.
Instead, the guidelines note that fraud is a form of corruption, stating:
Agencies also need to be alert to the risk of complex fraud
involving collusion between agency employees and external parties. Complex
fraud, which may also constitute corrupt conduct, can include instances where an
employee or group of employees:
-are targeted and succumb to exploitation by external parties
(bribery, extortion, grooming for favours or promises), or
-initiate the misconduct (including through infiltration of
an agency by an external party).
Note that some forms of corrupt conduct, such as soliciting
for bribes or secret commissions, may not cause a direct loss to the
Commonwealth, but may distort the market for fair provision of services or
The committee recognizes that, like other forms of corrupt conduct,
fraud is a continuing and evolving risk for the Commonwealth public sector that
must be handled effectively. As noted by the ANAO:
[T]he increasing focus on responsive and flexible programs to
meet community expectations can expose the Commonwealth to new areas of
fraudulent activity that need to be managed.
As noted in the committee's interim report for this inquiry, the
committee believes that ACLEI has opened the way for a more sophisticated and
risk-based approach to understanding public sector corruption, including fraud.
The committee is therefore encouraged to see the recognition of
corruption as a broader issue within the Commonwealth Fraud Control Guidelines.
The Commonwealth Ombudsman
The Commonwealth Ombudsman is responsible for ensuring procedural
fairness and complaint handling across the public service. As noted by the former
acting Commonwealth Ombudsman, Ms Vivienne Thom:
The Commonwealth Ombudsman has an important role to play in
the integrity framework that applies to Commonwealth law enforcement agencies.
This is achieved through our complaint handling, investigation and oversight of
law enforcement agencies. In the second reading speech to the introduction of
the ACLEI bill, it was noted:
'The Ombudsman will have a continuing role in relation to the
AFP and the ACC, except in dealing with corruption issues. This will enable two
complementary approaches to investigation to be brought to bear on different
types of issues. Together, the Integrity Commissioner and the Ombudsman will
provide the Australian public with the guarantee that the conduct of key
Australian government law enforcement agencies is subject to comprehensive
The Commonwealth Ombudsman also had a historical role in investigating
corruption, as explained by the current Commonwealth Ombudsman, Mr Allan Asher,
As you would know, in the early days even before ACLEI came
into existence, the Ombudsman’s office was responsible for some measure of
investigations into corruption across the entire Commonwealth system. Indeed,
our office was instrumental in part in encouraging the formation of ACLEI and
its work in the law enforcement area.
As noted in the Commonwealth Ombudsman's submission, corruption is less
likely to occur in an administrative system that does not tolerate misconduct.
As a result, the complaint handling and investigative role of the Commonwealth
Ombudsman can make an important contribution to curbing corruption by
preventing misconduct and poor administrative behaviour generally.
As a result, ACLEI and the Office of the Commonwealth Ombudsman share a
key relationship within the Commonwealth integrity sphere.
ACLEI's relationship with the
As noted above, the Integrity Commissioner and the Commonwealth Ombudsman
operate in a similar space with a different focus. Where the Integrity
Commissioner deals with corruption issues, the Commonwealth Ombudsman is
responsible for ensuring due process and handling complaints about misconduct.
The Commonwealth Ombudsman informed the committee that since the
establishment of ACLEI, his office had referred a number of matters to the
Integrity Commissioner for investigation. However, ACLEI's focus is not the
same as the Commonwealth Ombudsman's, which is to provide remedies or solutions
for individuals who make a complaint. For this reason, the Commonwealth Ombudsman
noted he had been speaking to ACLEI about mechanisms by which his office could
pursue those remedies even while ACLEI investigated the corruption aspect of a
A similar issue, raised by ACLEI, is the difficulty associated with correctly
categorising an issue as either corruption or misconduct, thus determining
whether a matter is more appropriate for the Commonwealth Ombudsman or the
Integrity Commissioner. ACLEI has proposed an amendment to the LEIC Act that
would enable easier transfer of an issue that was investigated as a potential
case of corruption, but upon examination was found to be an issue of
misconduct. As the Integrity Commissioner explained:
I have had some preliminary discussions with the Commonwealth
Ombudsman Allan Asher and suggested to him that there could be some matters
that he could deal with more conveniently—for instance, corruption issues may
start off as an ACLEI assessment or investigation but their disposition may
change to, say, an issue that really has more of a focus on practices and
procedures or misconduct. It would be convenient to have the ability under the
legislation to split those matters with consultation between him and the agency
to the Ombudsman’s office.
There is a reciprocal ability under the Ombudsman Act. He is
required to refer to me corruption issues if he is partway through an
investigation that may have had the appearance at the outset of being a
misconduct or a practices and procedures matter but it does...in fact take on a
corruption dimension so that would be...balancing a reciprocal provision.
The Integrity Commissioner also noted that such a mechanism could assist
in avoiding problems associated with definitions of corruption and the
delineation of the boundary between corruption and misconduct.
The committee agrees that such a mechanism would improve the operation
of the LEIC Act, and accordingly recommends the amendment of the LEIC Act to
insert a 'more conveniently dealt with' clause similar to that used in the Ombudsman
Act 1976 to address issues of overlapping jurisdiction.
3.91 The committee recommends that the Law Enforcement Integrity
Commissioner Act 2006 be amended so as to include a 'more conveniently
dealt with' clause that would enable the Integrity Commissioner to refer to the
Commonwealth Ombudsman issues that are not, or through the course of
investigation, it is discovered are not, corruption issues but which do relate
The Australian National Audit
The Auditor-General is broadly responsible for providing assurance
around financial statements and analysing ways to improve public
administration. As such, it has relatively high level powers to demand access
to information. These powers are used in conducting, amongst other functions,
performance audits that focus on the effectiveness, efficiency, economy and
legal compliance of a program.
In the course of conducting an audit of a program or agency, the ANAO is
potentially an agency that could discover misconduct or corruption. Mr Steve
Chapman, Deputy Auditor-General, noted that the ANAO was able to refer such
matters to the AFP for investigation, stating:
Confidentiality is very important and highlighted in our act,
but it is probably also worth mentioning that we have a particular provision in
the Auditor-General Act, section 36(2), which means that we can provide advice
to the commissioner for the AFP if disclosure would be in the public interest.
That would generally be where we might identify matters of fraud or corruption.
We have that opportunity to pass that information on.
However, ANAO officers who appeared before the committee were not aware
of any cases in which the ANAO had used this provision to refer a matter to the
AFP. Instead, where the ANAO had become aware of such instances, it was
generally alerted to the fact by the agency being audited.
Mr Chapman informed the committee that both the performance audits and
the financial audits undertaken by the ANAO gave due regard to matters of fraud
and corruption. ANAO has conducted a series of performance audits focusing on
fraud in recent years, and is currently updating a better practice guide to
agency fraud control.
ACLEI and the ANAO do not have a formal or statutory relationship,
however the committee is aware of informal contact between the two agencies
over the last year. As the Deputy Auditor-General noted, there is not a high
degree of overlap in their activities. Nevertheless, as two agencies operating
in the integrity sphere, the committee encourages the development of a closer
relationship. This is the subject of the next section of this report.
Coordinating across the Commonwealth
As described in the passages above, the Commonwealth integrity system
relies on a number of agencies operating in distinct, but potentially
overlapping spheres. A number of witnesses and submitters were of the view that
this multiagency approach should be subject to greater coordination, including
the potential establishment of a Commonwealth Integrity Commission to auspice
anti-corruption measures across the public service.
The committee sees the merit in the arguments put forward by witnesses
and submitters in favour of a formal, coordinated integrity structure across
the whole of government. However, the terms of reference of this inquiry are
restricted to the operation of the LEIC Act and the committee has therefore
sought to limit the scope of recommendations made in this report. The committee
is however prepared to revisit the issue of a broader Commonwealth Integrity
Commission in a future inquiry.
Through the recommendations contained in this report, the committee has
endeavoured to provide a statutory base for ACLEI's cooperation with other
integrity and accountability agencies. However, the committee is also in favour
of the promotion of regular information sharing and cooperation between those agencies
as a matter of course.
The Integrity Commissioner noted that integrity agencies in the Prime
Minister and Cabinet Portfolio meet informally on a regular basis. By virtue of
ACLEI's position in the Attorney-General's Portfolio, the Integrity Commissioner
has not been part of these meetings, but will attend from this year onwards.
The committee considers that regular contact between these agencies and agency
heads is vital and encourages such meetings wherever possible.
Evidence from witnesses and submitters proposing formal structures for
the coordination of integrity measures across the Commonwealth fell into two
broad categories: a coordination board and a Commonwealth Integrity Commission.
Both of these options are canvassed below.
Professor AJ Brown recommended that a statutory coordination mechanism
be established to ensure that 'what has now become an expansion in the number
of integrity agencies is properly coordinated'.
He further explained that:
That statutory coordination mechanism would be something that
would need to ensure the coordination of investigative activity, intelligence,
risk assessment activity, corruption resistance building and prevention
Under the previous Victorian Labour state government, the 'Review of
Victoria's integrity and anti-corruption system' had recommended the formation
of an Integrity Coordination Board 'to strengthen cooperation and coordination
across the integrity system'.
The review proposed that the Board be established by legislation and comprise a
membership of core integrity agents. Additional membership would be extended by
the Board as required. It was proposed that the Board be empowered to share
information and conduct joint investigations as well as jointly conducting research,
education and promotion.
However, the new Coalition government in Victoria has announced that it
will establish an 'Independent Broad-Based Anti-Corruption Commission', with
the power to investigate allegations of corruption against all politicians and
Is a broad public sector integrity
Evidence to the inquiry noted the absence of broader public sector
anti-corruption oversight at the Commonwealth level and argued that such
oversight is required.
The Commonwealth Ombudsman argued in favour of a broader Commonwealth
integrity agency on the basis that the incentives and opportunities for
corruption are increasing as the Commonwealth becomes more involved with
directly funding activities.
Mr Howard Whitton endorsed the Commonwealth Ombudsman's view, noting
that a Commonwealth-wide integrity commission, including all public functions
and public bodies, would be in accordance with Australia's obligations under
the UN Convention Against Corruption.
Transparency International Australia also argued in favour of a broader
integrity commission, stating that:
Corruption is not limited to law enforcement agencies. Urgent
consideration should be given to expanding ACLEI’s jurisdiction across the
Commonwealth Public Service with a view to ensuring consistent and meaningful
promotion of standards of integrity within it and federal agencies.
Similarly, Professor AJ Brown and Mr Peter Roberts submitted that:
Currently there are very large areas of important Commonwealth
public administration which are not subject to effective review and oversight
in relation to the management of integrity risks and integrity breaches. While
it is valid and sensible for the Commonwealth Parliament to prioritise those
areas of activity which should be subject to closer scrutiny and oversight than
others, the fact is that all agencies and departments should be included in
these elements of the Commonwealth's overall integrity system.
Reflecting on the 'Utegate affair' Professor Brown remarked:
This illusion that the Commonwealth is somehow magically
better than the states is one of the reasons why it has been going backwards to
the extent that it is there at a rate of knots.
Mr Peter Bennett from Whistleblowers Australia also argued there is a
need for a broad public sector integrity commission at the Commonwealth level,
explaining that there are presently limited avenues for whistleblowers to take
their concerns. Mr Bennett stated:
The question is: is there an issue of maladministration and
corruption in the federal public sector and the answer is yes.
... As the president of Whistleblowers Australia I would have
to get a call three times a week from people involved in the public sector
saying, ‘Things are going wrong and I do not know how to fix it.’ Frankly I
cannot tell them how to fix it either. All I can tell them is how to protect
themselves from the damage that is likely to occur if they tell anybody about
it. That is what I am limited to.
Rodda Castle & Co submitted that parliamentary committees require an
'independent authority' with the status of a 'standing judicial commission' to
which matters can be referred that have been brought to the committees'
attention during the inquiry process and warrant further investigation.
The submission contains an example in which such an authority could have been
Mr Graham MacAulay, President of the Westpoint Investors Group,
submitted that Commonwealth government agencies require integrity oversight and
singled out the Australian Securities and Investments Commission in particular.
Other witnesses, however, described the present integrity system as
sufficiently robust. For example, the APSC stated:
The commission’s position is that we do not believe the APS
needs a full-blown state ICAC style anticorruption commission. The view has
been that that would be overkill given that there are a number of agencies that
already have jurisdiction in that component. Already we have found that there
has not been the systemic corruption that has been the subject of what has
happened in the state systems.
The Merit Protection Commissioner, Ms Annwyn Godwin, noted that one of
the key differences between the state and federal levels was the personal
relationships that developed at the state level. By contrast, the Australian
Public Service focused on national issues and as such experienced a more
distant relationship with clients and stakeholders.
Furthermore, the Public Service Commissioner was of the opinion that
there was not enough evidence of the need for a broader Commonwealth integrity
body to justify the presumably high costs of such a body's establishment.
Mr Tim Smith, Chair of the Accountability Round Table argued the
In looking at cost, we tend not to look at the cost of not
doing it. As I discovered, the problem you run into immediately there is that
it is very hard to cost, particularly when it goes undetected, as it often
does. But consider the damage done to the reputation of government, of
politicians, of public servants internationally and domestically by some of the
matters that have been mentioned today. What price do you put on that? What
effect does that conduct—and, in particular, the failure to do anything about
it—have on community views about appropriate standards of behaviour in the
community? These are significant costs, I suggest, and they need to be taken
Professor John McMillan noted that while he does not see a need for a
broad integrity commission such a development is inevitable:
It is foreseeable that at some time in the future the
Commonwealth will choose to establish a broader integrity commission. I see
that happening sometime in the future because it is happening more in the
states. It will possibly happen in Victoria. We will wait to see the report of
the committee that is looking at it. It has already happened recently in an
initial way in Tasmania. When it has happened in all the states, it will be
hard for the Commonwealth to resist the call to establish a broader integrity
commission with a corruption focus.
The other reason I see it happening sometime in the future is
because the Commonwealth in our region of the world has strongly argued that
neighbouring countries should take similar steps in reviewing their integrity framework
and consider this as an option, and that they should be guided by the
principles in the United Nation Convention against Corruption. That said, I do
not see any demonstrated need for it at this stage.
The committee notes that since Professor McMillan appeared before the
committee, Victoria has opted to establish a public sector integrity commission
with jurisdiction over all Victorian public sector bodies, local government and
state government officials.
However, there is uncertainty over the precise model that may be used in
The right model for the Commonwealth
The Department of Prime Minister and Cabinet advised that while it is aware of
developments around the states
it has not undertaken work on the development of such an anti-corruption
mechanism at the Commonwealth level.
The committee did receive some evidence concerning the best model for
the Commonwealth. For example, Professor AJ Brown informed the committee that:
[I would] create a new general anti-corruption agency alongside
ACLEI and alongside the Commonwealth Ombudsman’s Office, or I would make it a
division of the Commonwealth Ombudsman’s Office. I would still give it
jurisdiction over all Commonwealth agencies. I would not try to redraw the
boundaries so that it was confined to non-law enforcement, because ACLEI was
there to deal with law enforcement and that is just creating a gap within which
things are going to be invited to fall. I would still give it a general
jurisdiction and, therefore, use it as a catch-all backup...
The Integrity Commissioner stated his preference that ACLEI remain a
specialist agency in the event that broader public sector integrity oversight is
introduced at the Commonwealth level in the future. Mr Moss explained that:
ACLEI has been going about 2½ years and has developed a focus
and an expertise in its particular focused area. For the role of ACLEI to be
something broader and to expand quickly to encompass a whole range of other
agencies would virtually mean starting again. I do not think that ACLEI could
absorb those additional responsibilities. It would be the wrong way to go about
it, anyway. You would want to start afresh and start on a new premise, which is
not the premise on which ACLEI was established.
One suggestion introduced by the Attorney General's Department would be
to merge ACLEI with the Commonwealth Ombudsman's Office. The Department stated:
[An] option would be to combine ACLEI with the Office of the
Commonwealth Ombudsman to consolidate the Commonwealth's anti-corruption arrangements.
However, this proposal was not endorsed by anti-corruption experts and
practitioners. Professor AJ Brown noted there are risks in such an approach. In
particular he pointed to the risk that the anti-corruption function could be
pushed aside in order to direct limited resources to the Ombudsman primary
function of complaint handling.
There are a number of implications for the idea of rolling
ACLEI back into the Ombudsman’s Office and I think there are a lot of dangers
in that. Unless it is done as part of a very sophisticated strategy with quite
a lot of legislative reform, and again unless it is done with a view to the design
of the whole system, it is potentially a recipe for yet again giving the
Ombudsman a specialist function and then in a few years time when the budget
gets tight it starts to get absorbed and consumed by other complaint handling
functions, which are always the great chewer upperer of resources in any
Ombudsman’s Office. There are all sorts of complexities. I would respond to
that suggestion—having come late and somewhat inconsistently in the piece—from
the Attorney-General’s Department with a bit of scepticism.
Professor John McMillan was able to reflect on this proposal from the
perspectives of his role as former Acting Integrity Commissioner of ACLEI and
former Commonwealth Ombudsman. Professor McMillan expressed the opinion that
such a merger, while 'theoretically possible', would not work well in practice
and gave three reasons as outlined below:
One is that there is a different skill set. Having worked in
both agencies, I know that the skill set in the staff of the Ombudsman’s office
was quite different to the skill set in ACLEI. Of course the Ombudsman’s office
could acquire extra staff, but at the moment the skill set is different. ACLEI,
in particular, has people with a lot more forensic investigation experience and
a much closer understanding of law enforcement.
The second is that ACLEI has all of these intrusive and
coercive powers. Until recently those were not exercised so it was more a
theoretical issue about whether it could be combined, but as I understand it
ACLEI at least has facilities and staff for exercising those functions. I
understand from some things I have seen in the media that those functions are
being exercised. They are not functions that are appropriate for an ombudsman’s
office, in my view.
Thirdly, of course the Ombudsman has a role in oversighting
the exercise of those functions by ACLEI. The Ombudsman has a large auditing
and monitoring role for the exercise by law enforcement agencies generally of
telephone interception, controlled operations, electronic surveillance and so on.
If the Ombudsman and ACLEI’s functions were combined, there would be a need to
create some other agency or oversight function.
The committee agrees with the appraisals of Professors Brown and
McMillan and does not consider that further attention should be directed to
The question of a broad public sector integrity commission is tangential
to the terms of reference for this inquiry. The committee considers, however,
that it has received sufficient evidence indicating there is an oversight gap
at the Commonwealth level to warrant further examination by this committee or
another appropriate body.
For this reason, the committee recommends that the Australian Government
conduct such an examination, including consideration of the following five issues
as identified by Professor AJ Brown:
- how to bring all federal officeholders within a realistic scheme
of integrity scrutiny;
- how to include senior officials such as ministers within the
- how to ensure that information about integrity breaches is
rapidly transmitted to the place where most effective action can be taken;
- how proactive integrity-building and corruption resistance
strategies, rather than reactive investigations into alleged integrity
breaches, are best pursued and monitored across the public sector; and
- how the different integrity institutions are best to be
The committee notes the valuable expertise established by ACLEI in the
area of corruption and law enforcement, and would see a continuing role for
ACLEI in this area, either as a stand-alone agency or as a separate section
within a broad-based Commonwealth integrity commission.
3.130 The committee recommends that the Australian Government conduct a review
of the Commonwealth integrity system with particular examination of the merits
of establishing a Commonwealth integrity commission with anti-corruption
oversight of all Commonwealth public sector agencies, taking into account the
need to retain the expertise of ACLEI in the area of law enforcement.
Is the existing system enough?
The committee is satisfied that the recommendations made in its interim
report and this final report will significantly improve law enforcement
integrity through the operation of the LEIC Act. In addition, several of the
recommendations will, if adopted, begin to provide greater assurance of
integrity across the Australian Public Service.
However, while the current efforts of agencies including the APSC, the
Commonwealth Ombudsman, the ANAO and ACLEI contribute to Commonwealth integrity,
the committee is left with the impression that more needs to be done.
This inquiry sought to examine the adequacy of the LEIC Act. However, in
conducting the inquiry, the committee received evidence that suggested the need
for anti-corruption measures that extend beyond narrowly defined law
enforcement functions to all public sector agencies and actors.
The committee recognises that there is very little evidence of serious
or systemic corruption in the Australian Public Service. However, it is also of
the view that there is an insufficient detection capability. As the Premier of
Queensland, the Hon Ms Anna Bligh MP, noted in a speech reflecting on that
state's approach to integrity in the aftermath of the Fitzgerald inquiry:
Despite the inevitable embarrassment from time to time, I
would much rather live and work in a system which is not afraid to pick up the
rock and discover the ugliness underneath than one that is content to leave the
rock alone and assume that an undisturbed rock is a sign of good health.
In short, the committee agrees with an approach that assumes the
existence of corruption in a system full of risks. In the present state of
affairs, there could be a lot of 'undisturbed rocks' that need to be overturned
if the public is to be fully assured that integrity in the public sector is
being properly maintained and safeguarded.
For this reason, in addition to the recommendations proposed in this
inquiry, the committee will remain seized of this issue in the future.
Ms Melissa Parke MP
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