National anti-corruption framework
This chapter provides an overview of Australia' current anti-corruption
framework, arguments for and against the establishment of a National Anti-corruption Commission (NAC), and considers how such a
scheme might operate.
The issues raised in this chapter may be considered in greater length in the
committee's final report.
The purpose of this chapter is to consider some of the key issues and
concerns raised in relation to a prospective NAC. In raising these matters, the
committee intends that this interim report will generate further discussion and
evidence regarding the benefits and drawbacks of establishing a national NAC. In
its final report therefore, the committee will endeavour to identify and
explore some of the methods to address these challenges.
Calls for a national anti-corruption commissioner
Calls for the establishment of a NAC date back to at least the 1980s; a
time when the first state-based anti-corruption bodies were being established.
Over recent years there have been renewed calls for the establishment of a NAC
by non-government organisations, academics, and some politicians.
In 2005 the National Integrity Systems Assessment Final Report (NISA Report)
by Transparency International (TI) and Griffith University put forward a
best practice integrity model. The report strongly recommended a comprehensive
independent anti-corruption agency which would operate across the Commonwealth,
not just a few agencies.
TIA repeated this call most recently in January 2016 when it publishing an
issues paper arguing that 'the Australian Government should establish a
broad-based federal anti-corruption agency'.
The Accountability Round Table (ART) argued for the establishment of a
national commission in response to the Australian Government's 2011 discussion
paper on the Commonwealth's approach to anti-corruption.
The former Counsel assisting the NSW ICAC, Geoffrey Watson QC, similarly
called for the establishment of a federal NAC in a lecture in 2015.
Associate Professor Gabrielle Appleby of the University of New South
Wales' Gilbert + Tobin Centre of Public Law has similarly argued that there is
a need for a NAC.
There have also been calls in various democratic forums for the
establishment of a NAC, with the Australian Greens having have introduced three
bills to establish a NAC.
In 2011, the Parliamentary Joint Committee on the Australian Government
Commission for Law Enforcement Integrity (PJCACLEI) recommended—on the basis
that the committee had received evidence indicating gaps in the Commonwealth
oversight regime—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.
Arguments against a National Anti-corruption Commission
While the above highlights calls from various quarters to establish a
NAC, these moves have been parried by some sections of the media and academia,
the public sector, as well as many elected officials.
None of these groups in any way argue that corruption should be ignored or
underplayed, but that a NAC is not the best means to deal with any problems of
corruption that may exist.
Those opposed to the establishment of a NAC generally put forward
arguments, which can be broadly grouped into two categories, that there is:
a lower risk, and a lower level, of corruption at federal level
reducing the need for an overarching anti-corruption body; and
already a strong anti-corruption framework in place that has
proved successful at preventing and revealing corruption in the limited cases
where it has occurred.
Lower risk of corruption at the
One of the key arguments for not establishing a NAC is that there is, in
general, less corruption at the federal level than at the state level. In 1993,
Professor Peter Boyce put forward an explanation of why corruption appears
to be lower in the federal arena compared to the state level:
[T]he Commonwealth is more concerned with broad policy issues
which don't lend themselves to bribes, kickbacks or decisions affected by
conflict of interest than the States, and the key decision makers are
physically more remote from many of the day-to-day decisions where corruption
can occur. Secondly, the Commonwealth has been much more conscientious in
developing a system of parliamentary scrutiny than any of the States, and has
set in place administrative review processes which tend to insulate the
The Australian Public Service Commission (APSC)—the federal body
responsible for the promotion of high standards of integrity and conduct in the
Australia Public Service (APS)—put it to the PJCACLEI, echoing
Boyce's arguments, that there is no need for a NAC as the risks of corruption
are lower at the federal level of administration than they are in the state and
local government spheres:
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 area. Already we have found that there has
not been the systemic corruption that has been the subject of investigations in
the state systems.
One of those is around the nature of the work of the APS—in
particular, that we tend to be focused on national policy issues. A lot of the
risks that are inherent within the state jurisdictions are about having a
personal relationship that you can develop—transfer of money and particular
decisions can be taken within a smaller group of people that you would actually
have a relationship with. In health, in direct policing, in teaching and those
sorts of things, there is a direct relationship that you can develop over a
period of time.
The Merit Protection Commissioner further noted that 'there is no
evidence of systemic corruption'.
In 2011 the then Public Service Commissioner Mr Sedgwick similarly argued that
there was no large scale problem with corruption at the federal level.
In the 2012–13 APSC State of the Service Report, the APSC argued that
while the Australian Government cannot take the risks posed by corruption
lightly, the Australian Government is less susceptible to corrupt behaviours
than the states and territories:
While the Australian Government faces corruption risks,
particularly in the regulatory and law enforcement fields, due to the nature of
the functions performed by state public services (for example, land planning
approvals and mining licences) state activities are often inherently more
susceptible to corruption.
In the 2014 APS Employee Census showed that only 2.6 per cent of
respondents indicated that they had witnessed another APS employee engage in
behaviour they considered to be corruption, defined for the census as 'the
dishonest or biased exercise of a Commonwealth public official's functions...that
would usually justify serious penalties, such as termination of employment or
TI regularly rates Australia as among the least corrupt countries on the
planet. In its most recent Corruption Perception Index published in
2015, Australia is ranked 13th out of 168 countries. Of the 12
countries ahead of Australia on the TI table only Singapore has a national
anti-corruption body—and of the top 20 countries only two have NACs—
highlighting that a NAC is not a panacea to preventing corruption.
Already a strong anti-corruption
framework in place
Opponents of the establishment of a NAC highlight that there is already
a robust anti-corruption framework in place at the national level, and that the
high-risk areas that do exist are currently extensively monitored. A number of
measures are currently in place at the federal level to address corruption.
These include offence provisions which criminalise corrupt activities,
statutorily prescribed public sector standards, and investigative, monitoring
and supervisory functions performed by various regulatory and investigatory
The committee was informed by the Attorney-General's Department that the
reason the government does not support the establishment of a NAC is that there
are already robust measures in place both within and external to government:
The Australian government does not support a National
Integrity Commission. The Australian government's approach to dealing with
corruption is integrated and multifaceted. We work to get the standards and
training right, assess risk and detect, investigate and respond to corruption.
Underpinning this approach is our democratic system of representative
government and the separation of powers enshrined in the Australian
Constitution. There are a range of institutions that play a role in protecting
against corruption and enabling scrutiny of the public and private sectors.
These include parliamentary committees that scrutinise government activity and
proposed laws; a free media; and an active civil society.
Australia ratified the United Nations Convention against Corruption
(UNCAC) on 7 December 2005. The Law Council of Australia (LCA) provides a
summary of Australia's obligations under the UNCAC framework:
As a party to the UNCAC, Australia is required to develop
policies in relation to anti-corruption; establish and promote practices to
prevent corruption; strengthen systems for the recruitment, hiring, retention,
promotion and retirement of public servants and other non-elected public
officials; and promote accountability and transparency in public finance.
Australia must also take steps to prevent corruption in the private sector.
Australia has also ratified the United Nations Convention against
Transnational Organised Crime and the OECD Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions.
At the federal level, a number of agencies or office holders have
specific roles in relation to corruption.
For example, the Australian Commission for Law Enforcement Integrity (ACLEI)
provides independent assurance to government about the integrity of Australia's
law enforcement agencies.
The APSC is responsible for promoting the APS' Values and Code of Conduct and
evaluating the extent to which agencies uphold the APS' values and the adequacy
of compliance with the Code of Conduct. Among other things, the Code of Conduct
states that agency heads and APS employees must not use their employment
improperly for personal gain.
The committee was informed that the APS emphasises a culture of
integrity to prevent corruption:
[T]he first thing that we want to do in the Commonwealth is
promote a culture of integrity to make sure that there is not corrupt behaviour
happening. If you think about the fact that we have over 200,000 employees in
the Commonwealth, our starting point is making sure that we have a culture of
integrity so that there is not the kind of wrongdoing that you are talking
about. That is a really key thing that agencies do.
The Australian Federal Police (AFP) investigates serious or complex
crimes against Australian Government laws, its revenue, expenditure or
property. This can include both internal and external fraud committed in
relation to Australian Government programs. Australian Government agencies
refer allegations of corruption to the AFP for investigation.
In 2013 the AFP established the Fraud and Anti-Corruption Centre (FAC
Centre) as a business unit within the AFP's Crime Program. The committee was
The FAC Centre, as it is called, coordinates the operational
response to corruption by bringing together officials from a range of different
agencies and leveraging their strengths and expertise. The AFP-led FAC Centre
includes officials from the Australian Taxation Office, the Australian
Securities and Investments Commission, the Australian Crime Commission, the
Department of Human Services, the Department of Foreign Affairs and Trade, the
Department of Immigration and Border Protection, the Department of Defence and
the Australian Transaction Reports and Analysis Centre. Officials from the
Attorney-General's Department and the Commonwealth Director of Public
Prosecutions are represented as advisory members.
The AFP argued that the FAC Centre provides the specialised expertise
and collaborative networks to tackle complex fraud and corruption:
Complex fraud and corruption matters are generally
protracted, requiring specialised skills and significant resources. The
dedicated FAC teams provide a robust framework to build inter-departmental and
industry engagement to seek to address these matters collaboratively and
The AFP emphasised to the committee that one of the critical
capabilities of the FAC Centre is the ability to bring agencies together
collaboratively to tackle corrupt activities:
The third aspect, and this is the really important aspect, is
that by having different agencies at the table we were able to leverage off
each other's strengths and capabilities. By having tax sitting next to AFP,
sitting next to ASIC, sitting next to other agencies—in terms of being part of
that task force arrangement—we are able to leverage off each other's
capabilities, not just our own. I think that was a changing point in terms of
how we approach this sort of crime type in this sort of way.
The Office of the Commonwealth Ombudsman takes complaints and enquiries
from members of the public about government administrative action, and
undertakes investigations into those complaints and other systemic problems on
an 'own motion' basis. The Commonwealth Ombudsman's mission is to promote fair
and accountable government administration.
The Auditor-General, assisted by the Australian National Audit Office,
provides independent assurance about the use of public sector resources to
parliament, the government, and the public. As Grant Hehir, Auditor-General,
The key role of an audit office in the public sector is to
advise Parliament about whether public money is being spent well and delivers
value for money. This is achieved through providing assurance over how public
money has been spent, and the adequacy of the decision-making and management
that underpins such spending.
In addition to the aforementioned organisations and policies in place to
regulate the public sector and its law enforcement agencies, there are several
measures in place to facilitate political integrity.
In 2007, the Australian Government introduced new Standards of
Ministerial Ethics (Standards), requiring of Commonwealth ministers a high
standard of conduct. The Attorney-General's 2012 discussion paper explain the
justification of the Standards:
The standards are underpinned by the principle that ministers
and parliamentary secretaries must act with due regard for integrity, fairness,
accountability, responsibility and the public interest ensuring that corrupt
behaviour is not tolerated at the most senior levels of national government.
The Statement on the Standards for Ministerial Staff, the Lobbying Code
of Conduct and Register for Lobbyists, as well as the Australian Electoral
Commission's funding and disclosure scheme—requiring the public disclosure of
political donations above a certain threshold—are additional planks in the
Both houses of the Parliament of Australia have also established
committees dealing with alleged breaches of privilege. As explained by Odgers'
Australian Senate Practice (Odgers'):
The term "privilege", in relation to parliamentary
privilege, refers to an immunity from the ordinary law which is recognised by
the law as a right of the Houses and their members.
The Attorney-General's 2012 discussion paper on the Commonwealth
framework to prevent corruption also notes that 'robust democratic institutions
play an important part in promoting a fair and transparent society and
The democratic institutions listed include:
a free media;
civil society, including integrity agencies, academia and
non-government organisations; and
Royal Commissions which Australian governments establish 'to
inquire into and report on matters of public concern including allegations of
This division of responsibilities is known as the 'multi-agency'
approach, and can be summarised as: '...a number of different agencies [having]
specific responsibilities for tackling corruption in different levels of
government, and in relation to specific types of corruption'.
One of the reasons put forward for the multi-agency approach is that 'the
risks of corruption in the APS vary according to each agency's operating
environment. It is critical that agencies consider their own risk profiles and
take reasonable measures to mitigate risks.'
The Australian Government response to the aforementioned recommendation
in the PJCACLEI emphasises the adequacy of the existing multi-agency approach:
The Government's approach to preventing corruption is based
on the premise that no single body should be responsible. Instead, a strong
constitutional foundation (the separation of powers and the rule of law) is
enhanced by a range of bodies and government initiatives that promote
accountability and transparency. This distribution of responsibility creates a
strong system of checks and balances.
[On] the available evidence there is no convincing case for
the establishment of a single overarching integrity commission.
Cost of a dedicated anti-corruption
Opponents of a dedicated anti-corruption agency often cite two costs
associated with them; diminution of legal rights and financial costs.
The committee heard concerns that a dedicated NAC would threaten the
legal rights of individuals, as well as potentially unfairly tarnish the
reputation of individuals investigated, even when they are later found not to
have engaged in corrupt conduct.
The Rule of Law Institute expressed concerns that a NAC creates a new
system of justice without the legal protections embedded in the existing one:
It creates a parallel system of justice to the traditional
criminal court system, initially with all the credibility of a court, but
without any of the protections that have been built up around the court system
over many generations, including the presumption of innocence, the high
standard of proof beyond reasonable doubt, and the privilege against
The Institute of Public Affairs informed the committee that
anti-corruption agencies tend to possess powers that erode the protections for
individuals that exist in other judicial systems:
A federal anti-corruption commission would be a regressive
step from the perspective of the rule of law. Analysis conducted by the IPA
demonstrates that the defining features of state anti-corruption agencies are
the systematic breach of fundamental legal rights, including the presumption of
innocence and the right to silence; a lack of transparency and oversight; and a
disregard for the process and procedures adhered to by ordinary courts,
including the rules of evidence.
The committee heard that potential reputational damage can be managed
through the judicious use of public hearings; noting the concerns regarding the
NSW ICAC model which conducts many of its hearings in public.
TIA, a strong proponent of the NAC model, conceded that:
I would finally say that, with the ICAC examples, of course
it is legitimate that investigatory bodies do make mistakes and they sometimes
overreach and reputations can be unfairly besmirched—everybody knows that—but
those are not arguments against a federal ICAC at all.
Although easier to measure, in that it has a dollar value attached, the
suggested financial costs of establishing a NAC are unclear. Mr Quentin
Dempster, a proponent of a NAC, acknowledged that a new dedicated
anti-corruption body would be expensive, but noted that some of these costs
would be offset:
It is going to be relatively expensive—$100 million or
something, maybe a little bit more than that—but I think the other tangible
benefits would be the savings that would be made across all areas of government
because there would be an obligation on everybody, from private sector to
By way of comparison, the NSW ICAC had a budget of just under $30
million in the 2014–15 financial year.
One of the difficulties of assessing the financial costs of a NAC are
taking into account the savings that might be made through integrating
anti-corruption efforts and improved efficiencies created.
Concerns regarding the adequacy of the current system
Critics of the current multi-agency approach argue that it cannot be
said to be working in light of scandals that have emerged in recent years. They
question the underlying assumption that there is a reduced risk of corruption
at the federal level, and argue that a multi-agency approach creates holes that
may facilitate corruption.
Questioning the assumption of
limited corruption at the national level
The opinion that the federal government is less prone to corruption has
been questioned by some groups. As a general rule, former Supreme Court Judge
Tim Smith QC argued:
...there will always be a government corruption problem (in all
countries) unless a miracle occurs to remove greed and the desire for power and
hubris from the psyche of Homo sapiens. There is also the fact that some
of the species do not believe that the rules apply to them, and others believe
that the end will always justify the means.
In 2011, then Commonwealth Ombudsman Allan Asher informed the PJCACLEI
that there are opportunities and incentives for corruption at the national
[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.
Former NSW ICAC commissioner, Mr David Ipp, stated on the
Australian Broadcasting Corporation Four Corners program,
'Democracy for Sale' that there was 'no reason to believe that the persons who
occupy seats in the Federal Parliament are inherently better than those who
occupy seats in the NSW Parliament.'
Mr Tim Smith has argued that current features of modern government in
Australia have created a political landscape which is generally more vulnerable
to corruption, including:
increasing amounts of money spent by political parties on
the privatisation of many government services involving
significant discretionary powers conferred on ministers and government
a growth in the lobbying industry;
an increase in the number of ministerial staff and their lack of
an increasing dependent by the media on the supply of information
by the government combined with additional government media resources; and
the projected challenges regarding policymaking on sustainability
issues, which could substantially affect some businesses' profits.
The ART has also noted that the risks of corruption have been increased
in recent years by: the increase in government control of information; the
increased funding needs of political campaigns; the privatisation of government
services and projects; the flow of Ministers and their staff to the lobbying
industry on retirement from official duties; and large infrastructure funding
decision, alongside other risks.
At least one Australian state government had previously made similar
claims regarding being at a lower risk of corruption than other jurisdictions.
This was not the surveyed opinion of residents of that jurisdiction however:
It has been suggested that the level of misconduct or
corruption risk in Tasmania is less than in other jurisdictions. In this latest
survey, we sought to test if this is a view shared by the broader community. It
is not—88% of those survey (sic) agreed that 'people in Tasmania's public
sector are just as likely to behave unethically as people in the public sector
anywhere else in Australia'.
Western Australia's Corruption and Crime Commission argued that there
has been no evidence provided that corruption does not exist at the national
The [National Anti-corruption Plan discussion paper] asserts
that there is a low level of corruption within the Commonwealth sphere, but
this assertion is not backed by substantive research into this issue, and/or
the experience of a dedicated Commonwealth anti-corruption organisation.
The Commission's own experience is that corruption levels
within state public sector organisations vary greatly from the levels these
organisations claim to exist. The Australian experience of Royal Commissions,
Parliamentary Inquiries and the Australian Wheat Board...illustrate the point
that organisations can be motivated to under-report corruption that exists
It has also been suggested that the way the commonwealth has conflated
corruption and fraud results in a lower awareness of corruption:
[The] Commonwealth's heavy reliance on financial
accountability and fraud control as integrity mechanisms also means a low
sensitivity to detection and prevention of corruption other than fraud.
Recent incidents of corruption
Those who do not believe the federal sphere to be corruption free can
point to many instances to show that corruption has in fact been a feature of
Australian political life.
Recent years have shown several high-profile instances of alleged
corruption at the commonwealth level. In 2005, the
Australian Wheat Board made headlines for allegedly violating United
Nations sanctions and Australian law by paying bribes to Iraqi leader Saddam
Hussein to retain business.
In 2009, allegations emerged in the media that Securency, a note-printing
company half-owned by the Reserve Bank of Australia (RBA) and
another company—Note Printing Australia , fully owned by the RBA—had engaged in
corrupt conduct to secure contracts.
In 2015, an Australian Bureau of Statistics (ABS) employee was imprisoned
for using unpublished official data to derive personal gain on the financial
The ART provided evidence in 2012 of at least nine examples of corrupt
conduct from 1999 to 2012 involving a range of public agencies at the commonwealth
While these cases provide evidence that the federal level of governance
and politics is not free from corruption, they do not necessarily indicate
whether the current system is working or not. On the one hand it can be argued
that because these cases came to light the current system is working to prevent
corruption, and catching it when it does occur. For example, the committee was
informed by the AFP that the discovery and prosecution of the aforementioned
ABS employee was as a result of the work of the FAC Centre.
On the other hand it can be argued that the cases that have come to
light are only the few cases that have been discovered—principally through the
media—with many other instances of corruption left undiscovered.
Extending this idea more broadly, the lack of evidence of corruption
under the current system should not be extrapolated to there being no
corruption, rather than the more limited interpretation of there simply being
no evidence of corruption. It has been pointed out elsewhere that the absence
of evidence of corruption does not mean that there is not a corruption problem.
Multiagency approach has flaws
Groups such as TI and the ART argue that the current multi-agency model
is flawed, and is not adequate to prevent or discover corruption. In a
particularly critical summary of the current system, TIA wrote in 2012:
The recent adoption of the term ‘model’ suggests that current
Commonwealth arrangements reflect a degree of pre-existing planning or
coherence which, in TIA’s assessment, is factually and historically inaccurate.
The Commonwealth’s present arrangements would be better understood as the
result of decades of largely uncoordinated developments in administrative law,
criminal law and public sector management, together with political accident.
Elsewhere, ART has also criticised the existing system as being
fragmented and ill-defined:
We note also that the core of the Federal Government’s
approach of distributing accountability obligations among the Federal public
service, non-statutory agencies, statutory agencies, statutory corporations and
government business enterprises is contained in a network of inter-related
statutes: the Public Services Act, Financial Management and Accountability Act
and the Commonwealth Authorities and Companies Act. This collection of
legislation has a range of deficiencies. It does not clearly distinguish
between appropriate ex ante and ex poste accountability mechanisms or provide
for clear processes. In addition, the accountability framework appears to have
been developed in isolation of any clarification of how these statutory
accountability obligations intersect with the extension of ministerial
responsibility obligations to non-departmental governmental bodies outside the
constitutional core of government. The consequence is an ill-defined and
fragmented accountability framework that lacks a clearly identifiable and
enforceable body of principles to guide the behaviour of public officials.
The committee also heard evidence that the existing framework does not
have the resources or inclination to investigate corrupt practices that might
fall short of the definition of serious crime:
The Australian Federal Police and the fraud agencies that we
have heard discussed are doing a good job; there can be no doubt about that.
They are doing their best. We would seriously doubt that they are adequately
resourced, and it is difficult for them to get on with prosecutions and get
successful outcomes, but they do not have the resources, the time or the
inclination to look at misbehaviour that falls short of criminal conduct. It is
not really part of their job, so they are not really going to fill that gap,
and nor should they, really; it is not their job.
Professor Brown highlighted that the Australian Government is trying to
prevent corruption through the multi-agency model, but noted 'a multi-faceted
approach is not automatically a comprehensive approach, a well-coordinated
approach or an approach that delivers satisfaction that all the gaps are
actually being adequately covered'.
ART raised concerns that fragmentation and resourcing constraints might
lead to corruption slipping through jurisdictional cracks, or that overlapping
jurisdictions will similarly create opportunities for corruption to go
TIA highlighted some areas of concern where there remain gaps that potentially
allow corrupt activities to occur. TIA contended that:
Most federal agencies' anti-corruption efforts continue to go
unsupervised (other than clear criminal conduct reported to the AFP), including
around half of the total federal public sector not in the jurisdiction of the
Australian Public Service Commission;
There are no independent mechanisms supporting federal
parliamentary integrity (other than AFP investigations into criminal conduct);
Corruption prevention, risk assessment and monitoring
activities are patchy and uncoordinated; and
The criminal law enforcement focus of the AFP Fraud and
Anti-Corruption Centre, while important, includes foreign bribery, anti-money
laundering and other criminal cases, and cannot provide the necessary oversight
of 'softer' or 'grey area' corruption investigation and prevention activity
across the federal sector.
The ART argued that the current multi-body approach employed at the commonwealth
level is inadequate as it creates a shared assumption that there is effective
external oversight, noting:
[The] danger of relying on a multi-body approach and shared
responsibility was that each body was likely to assume effective oversight from
every other body, and thus abrogate their own ultimate responsibility.
[No] one had ultimate responsibility and each body involved
was likely to assume that all was well because the other body had been making sure
that nothing corrupt was going on.
The multi-agency approach also relies on each agency developing the
skills and expertise to monitor compliance, educate and investigate. Agencies
are likely to have competing priorities and potential conflicts of interest in
dealing with corruption internally. Internal systems are also at risk of
themselves becoming corrupted.
The role of discretion in the current framework was also questioned. ART
noted that there was discretion within the public service as to whether or not
a matter was referred to the AFP, and then the AFP could determine whether to
investigate. The ART argues that the AFP should investigate suspicions of
corruption when they come to light; even if on the surface the consequence of a
particular case appear minor.
Furthermore, the Australian Crime Commission's Organised Crime in
Australia 2015 Report noted that 'as the sophistication of organised crime
increases, corrupt conduct is likely to become less susceptible to discovery
than was previously the case'.
The current investigatory mechanisms in place such as Royal Commissions
and independent inquiries are used on an ad-hoc basis. Critics of these
mechanisms note that the terms of reference are often written in such a way as
to protect the government of the day.
The Law Council of Australia noted that these are only effective
'where there is a political will'.
The importance of political will was highlighted in New South Wales in 2010
when the State government prorogued Parliament three months before the
election, in what some commentators saw an attempt to avoid parliamentary
The committee's Chair reported that as a result of this, 'the Committee was
stymied in its efforts to uncover the facts surrounding the Gentrader transactions'.
Arguments in favour of a NAC
A national anti-corruption framework, adopting some of the properties used
in the states and territories has been proposed to address the flaws identified
in the current anti-corruption framework.
This report has already discussed the history of calls to establish a NAC, and
the circumstances that lead to the creation of dedicated anti-corruption
agencies in the states; this section will discuss some of the proposed benefits
of such a system.
While the most prominent function of a NAC is the discovery and
investigation of corruption, a NAC may also improve policy co-ordination,
provide leadership and education services, reduce potential jurisdictional
gaps, increase administrative efficiency, send an unambiguous signal that the
issue of corruption is being taken seriously, and provide confidence to the
public that corruption is minimised at the highest level of government.
Most of the state-based bodies also complete an educative function, as
well as an investigatory one. Providing education services surrounding
corruption can increase the resilience of organisations and individuals to
corruption, and clarify expectations around what does and does not constitute
The committee heard that there were significant educative benefits to
having a stand-alone body: 'The educative benefits of the establishment of this
at a Commonwealth level would be quite clear from the moment such a commission
were established, and everything would flow from that'.
The establishment of a stand-alone NAC sends a strong signal to the
general public, as well as those who are covered by the jurisdiction of the
body, that corruption is taken seriously by the political establishment and
that there is a commitment to preventing corruption.
Mr Quentin Dempster suggested that a dedicated anti-corruption body
provides the public with confidence that the corruption is taken seriously and
the work of the Parliament and administration is not based on undue influences:
Corruption is a secret transaction and very hard to discover.
Without a capacity to expose it, the public is left with cynicism, distrust and
conspiracy theories. The mere existence of a national integrity commission would
go a long way, I believe, to help to nip corruption, through influence peddling
and slush funding of politicians and political parties by powerful vested
interests, corporates or trade unions, tycoons or criminals, in the bud. It
would show the public of Australia that it is their parliament, through the
honourable discharge of their duties by elected members of the House of
Representatives and the Senate, which runs the country, not any external
influence-peddling power operating through devices conducive to corruption.
Associate Professor Gabrielle Appleby—quoted in The Mandarin—explained:
One of the main purposes of these types of bodies is to
promote public confidence in the integrity of government administration. The
establishment, in and of itself, is one way of demonstrating that.
The State of the Service Report 2014–15 argued that there is a
strong correlation between strong ethical leadership and perceptions of how
well an organisation deals with and manages corruption.
A NAC sends a strong signal to the public, public servants and political
participants that, at the highest level of government leadership, corruption is
being taken seriously.
The Queensland Integrity Commissioner noted that relying of broad-based
awareness training is not sufficient to address the challenges of corruption,
and that a specialised body that can provide tailored, confidential and
practical advice would improve the integrity system.
The establishment of an independent and ongoing body that does not rely
on the government of the day for its establishment or terms of reference
addresses some of the shortcoming of the current system of independent
inquiries and Royal Commissions. A NAC would be able to monitor whether or
not governments and organisations appropriately respond to recommendations and
reports. Furthermore, the perception that governments carefully insulate
themselves from any adverse findings through the careful crafting of terms of
references may be eroded. As highlighted to the committee by TIA:
The great difference between the kind of task force that the
Federal Police were talking about and this body is that it would be permanent.
Task forces come and go. They are resourced sometimes and not resourced at
other times. They tend to be split up by their very nature. What we are
advocating is one body that, of course, draws on all of those spectrums like
ASIC, the Australian Taxation Office and the Australian Crime Commission but
that is totally and solely focused on serious crime of that nature.
It was argued that a NAC is a clear indication that corruption will be
addressed. Associate Professor Gabrielle Appleby has argued that 'by fostering
greater awareness and education, the introduction of a new body also provides
an important moment around which cultural change within government can occur'.
The APSC appears to recognise that preventing corruption requires a cultural
commitment to anti-corruption supported by an adequate framework:
While preventing corruption is an important goal for
Australian Government administration, a focus on corruption prevention alone is
too narrow to support a robust culture of integrity. This means that employees,
managers and leaders must do what is right, rather than merely avoiding doing
what is wrong. The new APS Values and Employment Principles provide an
opportunity for agencies to reinforce a culture of ethical awareness and
integrity across the APS when embedding them into work. The APS Values and
Employment Principles need hardwiring into systems, processes and procedures
and should form the basis for every management decision.
While most submissions and witnesses seemed to agree that a measure of
independence was required for integrity commissions to complete their work, it
was pointed out to the committee that balancing independence and accountability
has proved notoriously difficult. The IPA noted that following the
establishment of anti-corruption agencies, governments have been disinclined to
undertake necessary modifications for fear of being accused of attempting a
TIA, quoted above, highlighted that there are a number of areas—such as
Parliament, sections of the public service, and matters such as electoral
funding—that do not currently fall under the auspices of any anti-corruption
Professor AJ Brown from Griffith University argued for an overarching
body to cover other Commonwealth departments and agencies, arguing 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 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.
Speaking to the committee, Professor Brown argued further that the areas
of corruption most concerning to the community are often those with the least
oversight, and there remain tracts of public administration inadequately
covered by the current system:
The other big gaps that exist relate to jurisdiction. We have
heard a lot from the Attorney-General's Department about the Australian Public
Service and about APS agencies. There is something of a regime that governs APS
agencies, but, when it comes to non-criminal and a broader comprehensive
approach to corruption risks, we have to recognise that Australian Public
Service agencies only account for around half, if you are lucky, of total Commonwealth
public sector activity and agencies. There is a huge issue around having a
coordinated system that works right across the whole of the Commonwealth. That
is without going close to parliamentary and political integrity, to political
finance risks and to all the other aspects of corruption that really worry the
community, just as if not more powerfully than the types of corruption problems
that occur within the public service or law enforcement or at the coalface.
A NAC with broad-ranging jurisdiction may prevent an investigation into
corrupt behaviour being prematurely terminated through an activity falling into
a jurisdictional gap and ensure that all public servants and office holders are
A NAC provides a single point of contact for complaints and tips from
individuals. The Queensland Integrity Commissioner highlighted that public
servants are less likely to seek advice on corruption if the agency or
institution in question will be investigating itself:
In providing advice on specific situations, there is a
significant risk if the body giving the advice is also the one which will need
to investigate any subsequent complaint. In addition to this conflict risk, in
my experience public officers are less likely to seek advice if the body giving
the advice may also investigate a complaint against them. They will be
naturally reticent to fully disclose a matter which puts them at risk of
It was suggested that a NAC removes this conflict of interest as an
independent agency has no incentive to cover up any corrupt activities that may
have occurred. While the committee accepts that the APS has some mechanisms in
place to prevent and respond to corruption, the 2014–15 State of the Service
report noted that of the APS employees who had witnessed behaviour that they
perceived as corrupt, only 34 per cent had reported that behaviour.
Some submitters suggested that the establishment of a NAC provides an opportunity
to improve collaboration with state bodies and concentrate policy expertise in
a single agency. Currently each agency under the commonwealth framework
maintains their own policies and expertise to ensure compliance with
anti-corruption requirements. The establishment of a NAC would reduce
duplication across the public sector while at the same time developing
corporate knowledge that could be accessed throughout the public sector.
In addition to discovery of corruption, a single body may provide
'systemic oversight, education and coordination for the existing mechanisms'.
A NAC would be well placed to work with state-based anti-corruption bodies to discover
and prevent corruption. TIA notes that:
One of the most robust elements of Australia's
anti-corruption systems is the growing presence, at State level, of coordinated
capacity for the independent investigation, oversight and review of serious
non-criminal misconduct risks across the entire public sector.
It can be assumed that a single body with responsibility for
anti-corruption would be able to build stronger working relationships with key
state-based counterparts, further strengthening Australia's anti-corruption
Effectiveness of anti-corruption agencies: experiences of the states
The expenditure of public money always requires justification. Any
expansion of public services should be accompanies by expectations and measures
of success. In a polity with no corruption, there would be no need to take any
anti-corruption measures. In the absence of anti-corruption measures it is
doubtful that any corruption would be uncovered, creating the impression of
there being no corruption; even if this is only because there is no-one
Careful thought needs to be given to measuring success in the case of an
anti-corruption agency. An anti-corruption agency that uncovers no corruption
may be any of; extremely successful, incompetent, severely under resourced, or
operating in a corruption free environment. The response to this problem in
Australia has typically been to rely on qualitative measures of trust in
government and perceptions of corruption. As the former NSW Premier Nick
...it would also be crass and naïve to measure the success of
the independent commission by how many convictions it gets or how much
corruption it uncovers. The simple fact is that the measure of its success will
be the enhancement of integrity and, most importantly, of community confidence
in public administration in this State.
Due to this, the NSW ICAC has commissioned surveys addressing
perceptions of ICAC's effectiveness in terms of its success in exposing and
reducing corruption. The most recent report, published in 2013, found that:
More than two-thirds indicated that the ICAC had been
successful at exposing corruption and more than half indicated that the ICAC
had been successful at reducing corruption. While the percentage of respondents
who indicated that the ICAC had been successful at exposing corruption has
decreased since post-2000, the percentage who though that the ICAC had been
successful does not appear to have markedly changed and the percentage who
thought that the ICAC is a good thing for the people of NSW appears to have
increased from an already high starting point.
In addition, the same report concluded that '[a]lmost all respondents
who were aware of the ICAC indicated that it was a good thing for the people of
The Tasmanian IC has commissioned three community perception surveys
since its inception in 2010. The Tasmanian IC's Annual Report 2014–15
reported on the latest of these surveys conducted in May 2015:
A key finding was that the majority—92% of
respondents—believe that Tasmania needs an Integrity Commission (89% in 2013)
and that 61% of respondents also agree there is now more attention on ethical
behaviour in Tasmania's public sector since the Commission started operating in
A large number (87%) of respondents agreed that 'there will
always be some dishonesty, unethical behaviour and corruption in the public
sector' (90% in 2013). There was a significant decrease in the responses
indicating that 'there is no point reporting corruption or unethical behaviour
in the Tasmanian public sector as nothing will be done about it' (22%, down
8%). This indicates that Tasmanians are becoming increasingly confident that
misconduct will be appropriately dealt with. This is a key objective for the
Commission, set out in its legislation.
In October 2015, the outgoing Tasmanian Integrity Commissioner, Diane
Merryfull, spoke to the ABC about the early years of the IC:
I think it's been a bit of a surprise to people that the
Integrity Commission's been so effective.
Often when I speak to senior people across the public sector
I don't think they expected the Integrity Commission would be as public and as
resolute in pursuing its agenda as it has been.
The Integrity Commission is in the process of proving itself
to everybody, including the Tasmanian Government.
We believe that transparency and accountability are the
absolute essentials to improving integrity.
In 2014 SA undertook a review to consider whether the SA ICAC had 'made
an appreciable difference to the prevention or minimisation of corruption,
misconduct and maladministration in public administration'. The report
It is not possible to make this assessment on a strictly
quantitative basis. However it is possible to draw inferences from the nature
of the organisation which has been created and the activities in which it has
been involved. The ICAC website provides an insight into the educational
activities which have been undertaken. There would seem to be no doubt that the
purpose and function of ICAC is reasonably well-known in the community and that
public officers, in particular, would be aware of its role. It is likely that
information and advice given to public authorities by ICAC has led to a
heightened awareness of the importance of institutional probity. Publicity has
also been given to the matters in which there has been a referral to
prosecuting and disciplinary authorities.
In the light of these educative activities and the action
which has been taken by the Commissioner in particular matters, I am of the
view that the operations of ICAC have contributed in an effective manner to the
prevention of conduct of the type which the Commissioner is required to
Following the conviction of Queensland parliamentarian Gordon Nuttall in
2009, then Queensland Premier gave a speech on purpose of the Qld CCC, and
whether anti-corruption bodies were effective:
It is the great irony of accountable public administration
that if you establish an independent watchdog, give it the powers and resources
needed to investigate improper behaviour and it exposes wrong doing, question
marks will be raised about your administration. Conversely, if you have no such
independent watchdog and nothing is investigated or discovered your
administration will escape perceptions of odious behaviour.
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.
So, are these mechanisms a good investment? Yes.
The WA CCC—in addition to the regular metrics on the number of
allegations received and the number of reports published—also reports on the
average cost of service per full-time equivalent employed in agencies under the
WA CCC's jurisdiction. In 2014–15 it was reported that it cost $205 per
FTE employed within public authorities under the WA CCC's jurisdiction.
Structure of a national anti-corruption commission
There are many possible structures of a NAC, as evidenced by the
diversity of organisations that have been developed at state level; each with
broadly the same purpose, but with differing organisational structures,
responsibilities and powers.
In 2005 TI's NISA Report recommended the establishment of a NAC. The
recommendations in the NISA Report outline in some detail the best-practice
principles and administrative arrangements that the body should take. The
recommendation to establish as NAC—in full—reads:
That the Commonwealth Government’s proposed new independent
statutory authority be tasked as a comprehensive lead agency for investigation
and prevention of official corruption, criminal activity and serious misconduct
involving Commonwealth officials, based on the following principles:
- That the agency’s jurisdiction not be limited to select
agencies but include all Commonwealth officials from secretaries or equivalent
down, including employees of Commonwealth-owned corporations, and any other
persons involved or implicated in wrongdoing affecting the integrity of
- That the agency be made (i) an ex officio member of the
Commonwealth Governance Review Council or other integrity coordination body
created pursuant to recommendation 2, or failing that the existing
Administrative Review Council, and (ii) subject to parliamentary oversight by a
suitable parliamentary standing committee, preferably the same committee
responsible for oversighting other core Commonwealth integrity agencies (see
- That the jurisdiction of the agency also include
Commonwealth parliamentarians and ministers provided that, if recommendation 6
is taken up and an effective parliamentary and ministerial integrity system
established, the agency’s jurisdiction is only triggered by a request of the
Parliamentary Integrity Commissioner, presiding officer of either House, or
where in the opinion of the agency head an important matter of public interest
would otherwise go uninvestigated;
- That the agency be charged with a statutory responsibility
to promote integrity and accountability as well as investigate wrongdoing, and
be given a commensurate positive title rather than one defined by crime,
misconduct or corruption;
- That the agency be empowered and required to:
- undertake inquiries of its own motion as well as receive
and investigate complaints from whatever source;
- exercise concurrent jurisdiction and participate in a
statutorily-based investigations clearing house with other federal
investigative agencies including the Commonwealth Ombudsman and Australian
Federal Police; and
- share all relevant information with other Commonwealth
and state integrity institutions, and conduct cooperative investigations with
them including delegating its own investigatory powers, when in either its or
their opinion their own jurisdiction is also involved;
- That the Commonwealth review its operational definitions
of corruption to include internal fraud and any other offences or types of
serious misconduct with the potential to seriously affect public integrity, and
revise its reporting, monitoring and prevention policies accordingly.
The recommendation of the NISA report goes to the jurisdiction,
oversight, responsibilities, and powers of a NAC. It makes clear that while the
most public feature of a NAC is the investigation of allegations of corruption,
the role of a NAC extends to promoting integrity and accountability. The body
would be accountable to a suitable parliamentary standing committee (in the
same way that PCJACLEI currently monitors the performance of ACLEI) and work
with state and territory integrity bodies to help prevent and investigate
corruption regardless of where it occurs.
The committee also heard that an effective model could be the use of a
coordinating council model (CCM) to remove concerns regarding conflicts of
interest. In a CCM a central body acts as a clearing house for allegations of
corruption, referring the investigation to an existing agency which already has
the specialist expertise to deal with the allegations. Professor Graycar
explained that a CCM allows the existing administrative infrastructure and
expertise to investigate allegations of corruption, while an external body
provides some assurance that matters are being investigated:
In essence, the council would direct the traffic rather than
set up a separate body with investigative and prosecutorial powers.
One is an organisation that directs the traffic, but reports,
perhaps to the Attorney, perhaps to a parliamentary committee, on the way it
has done this, how it has increased awareness of corruption in society, how it
has monitored performance and how it has monitored Australia's adherence to our
international agreements, and so on. But, in addition, very often we find that
our major anti-corruption agencies do not have all the detailed knowledge of
the transgressions in the specific policy area.
Again, the council would be able to identify the way in which
inspectors-general deal with their own internal issues and the way in which the
various players perform, all of whom have a role in increasing integrity. The
Ombudsman; the Public Service Commissioner; the Auditor-General, who chases
stuff; the AFP: all of them have a role.
The structure proposed by TIA also clearly defines the relationship
between the NAC and the executive. Professor AJ Brown from Griffith University
has argued that an anti-corruption body needs to be free from the influence of
The starting principle should be that the agency (as a
standing agency) has a clear, legislated jurisdiction which everyone
understands, and which does not change on the whim of the executive.
Through ensuring that there is sufficient distance from the
executive—while maintaining appropriate oversight—the NAC will be free to
investigate corruption wherever it may occur. Sufficient distance also
addresses the concerns raised earlier about the perception that governments can
shield themselves from unwanted scrutiny.
Several proponents and opponents of a NAC have highlighted the
importance of resourcing to the efficacy of anti-corruption regimes. Associate
Professor Appleby warned that: 'A poorly funded anti-corruption body also poses
a danger, providing a façade of increased commitment to integrity without
adequate resources to carry through on that mandate'.
Similarly, a critic of the NAC approach noted that:
...if resources are not abundant, the cynics might suggest that
politicians and players are working behind the scenes in order to ensure that
the new agency is in fact hamstrung or politically toothless, so that business
can proceed as normal. This scenario has played out with other anti-corruption
agencies in Europe and Asia.
Any new body has to be appropriately funded to perform its designated
tasks to the standards expected by the Australian public.
Exploring models for Australia's
national anti-corruption needs
As discussed above, there are multiple different models that Australia
could adopt to prevent corruption. These models need to take into account the
community's appetite for increased costs—both financial and legal—in exchange for
increased certainty of public integrity, as well as the kinds of corruption
present in Australia.
The committee was informed by Professor Graycar that 'much of the
research that has been done on poor country corruption and we often try to
apply poor country models to rich counties', despite being aware that the kinds
of corruption in rich and poor countries are very different.
The importance of finding an appropriate anti-corruption model for the given socio-political
environment is highlighted by the fact that of the countries listed as less
corrupt than Australia on TI's Corruption Perception Index, only one has
a dedicated national anti-corruption agency.
To this end, TIA updated the committee on their ongoing research efforts
'for the setting up of a national integrity system analysis—that is, broad
based, comprehensive research into all of those difficulties to see which is
the best way forward'.
Professor Brown from Griffith University informed the committee of
research currently underway—in partnership with TIA—on identifying appropriate
anti-corruption systems in Australia.
This research would draw together the experiences of the Australian
jurisdictions in tackling corruption and may provide insights into how the
Australian Government could improve its own anti-corruption measures. Professor
Brown reported that the NSW and Queensland integrity agencies and the
Attorney-Generals' Department, had already engaged with this research. The
research project is currently awaiting the outcome of an Australian Research
Council research grant funding round before progressing further.
Highlighting the importance of additional research, the committee was
informed that there has been no research on anti-corruption agencies in federal
systems. Professor Graycar reported to the committee:
I have just started a piece of research...on anti-corruption
agencies in federal systems. There has been no research on that at all. Most of
the countries that have collaborative models are not federal systems, so it is
not as if there is a great body of anti-corruption agencies or anti-corruption
councils; they are all dealt with in different ways depending on the problem
they are trying to solve.
TIA concluded: 'whatever way you look at it, though, I think you need to
do research into this topic and come up with a number of models'.
The establishment of a NAC is a significant decision. The tension of
weighing up the creation of a new body with significant powers versus the need
to prevent corruption was eloquently expressed by veteran journalist Mr Quentin
I wish we did not have to have anti-corruption commissions.
They have extraordinary coercive, sometimes you could say draconian, powers.
Reputations can be damaged, sometimes unfairly.
The thing I wanted to say from my observation here in
Queensland and in New South Wales is that we have had these institutions—these
states have had the benefit of what really has been a cutting edge of
countermeasures of corruption, and it has been fraught with difficulty and
great contention by the polities and the politicians, the lawyers and public
officials in those jurisdictions, but I think the public benefit of their
existence is substantial.
The decision between the establishment of a NAC and the multi-agency
model is not a binary choice. Both should be components of Australia's
integrity system. Agencies still need to have in place appropriate safeguards
to minimise corruption, leaders will still have to model the behaviours they
expect in their subordinates, and the legislature will be called upon—from time
to time—to establish independent inquiries on specific matters.
This report has highlighted the shortcomings of the existing
arrangements. It has also identified some of the risks and challenges to
strengthen Australia's robustness against corruption at the highest levels. The
committee will endeavour to explore these matters during the course of its
inquiry while considering various anti-corruption models.
The committee is of the view that further Australian specific research
will assist in future considerations of the establishment of an NAC. The
committee encourages further research that brings together the expertise of
academia, current anti-corruption agencies, and the public and non-governmental
sectors to assess the merits, scope and structure of possible anti-corruption
mechanisms. Although it may be premature for this interim report to make
recommendations with regard to the establishment of NAC, findings from such
research can aid the government and the Parliament in determining the most
suitable model if NAC were to be established.
The committee recommends that the Australian Government support current
and sound future research into potential anti-corruption systems appropriate
for Australia including the research led by Griffith University, in partnership
with Transparency International Australia.
Senator Zhenya Wang
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