At the outset the NXT would like to acknowledge the work of this
committee. The majority report explores many of the issues relating to
integrity commissions around the country, including their successes and their
drawbacks. We are encouraged that both the major parties have taken the issue
of establishing a national integrity commission so seriously, however we
believe that given the weight of the evidence received by the committee this
inquiry has missed an important opportunity to recommend the establishment of a
national integrity commission. The NXT strongly believes that a national
integrity commission should be established.
The NXT recommends that the Commonwealth government establish a national
integrity commission with broad scope to address integrity and corruption
matters. The Commonwealth should strongly consider extending the powers of an
existing agency to perform this function.
The Commonwealth would benefit from a single umbrella commission that
can direct complaints regarding corruption and integrity. There is currently no
single point for making a complaint regarding corruption, and evidence
indicates this creates public confusion as to where to report concerns. As
outlined by Mr Samuel Ankamah of Griffith University:
once [people] know that there is an umbrella body and that
they are always able to go to such an umbrella body to report corruption then
because this body would have the power to require any other body to investigate
that issue and also have the power to require that body to report back to the
commission, that would actually boost [public] confidence.
A federal national integrity commission would be of benefit as a useful
first point of contact for people wishing to report corruption.
The establishment of a national integrity commission also has the
ability to provide the public with clarity and certainty regarding what can,
and is investigated, without having to report to numerous agencies. During
committee hearings, Senator Kakoschke-Moore questioned Professor Gabrielle
Appleby on importance of having a single agency to which corruption can be
reported, ensuring that the ability of individual agencies to undertake their
functions is supported.
Senator KAKOSCHKE-MOORE: One of the things that I have
noticed throughout the evidence in the submissions that we have received is
that there does seem to be a level of public confusion about what exactly
corruption is and then, once you have identified behavioural conduct that you
think does not stack up, there is uncertainty about where you should go to
I would be interested to know your views on whether that is
because the complaints received were not about corrupt conduct per se or
whether they were just directed to the wrong body. The ombudsman had similar
statistics that demonstrated that most of the reports made were not within the
purview of the Ombudsman.
Prof. Appleby: I think this goes to a few points that
have already been discussed by Professor Twomey and Professor McMillan earlier
on the issue about public understanding and public education—where you might go
to lodge a particular complaint about a particular agency, and at what level.
At the Commonwealth level, the diffusion of agencies is such that there is
confusion. There is no one-stop point to make a complaint, and people do need
to have some understanding. I think that that actually undermines the ability
of individual agencies to fulfil their functions. It may actually dissuade
people from coming forward because they are confused. 'Should I go to the
ombudsman? Should I go to ACLEI?' That sort of thing.
I think I am much more persuaded by Professor McMillan's
suggestion this morning that maybe there should be a one-stop button that you
press for a complaint and then there is a triage system that sits behind that.
I do not think it is fair for the public to have to understand the nuances of
what might be the jurisdictional bar for one particular agency over another. If
they have concerns and they want to be able to have them addressed by the most
appropriate agency, the Commonwealth should create a funnel for those
The NXT supports the committee’s view that consideration could be made
to extend the existing powers and jurisdiction of the Australian Commission for
Law Enforcement Integrity rather than establishing a new agency, as long as it
is appropriately resourced. The NXT is wary of implementing an entirely new
body within the existing integrity framework that may replicate the scope of
other agencies and add to increasing public confusion regarding the current
The NXT recommends that the Australian National Audit Office (ANAO)
undertake an audit of the national integrity framework prior to implementing a
national integrity commission, with the aim of identifying vulnerabilities and
gaps within the existing framework.
The ANAO has the broadest jurisdiction of the federal institutions
through its performance audit powers, and possesses the greatest transparency
within its reporting capabilities. The Commonwealth should utilise these powers
and require the ANAO to undertake a cross-sectoral and inter-institutional
investigation into the existing national integrity framework. This
investigation should be completed prior to the implementation of a new national
integrity agency in order to assess the effectiveness and scope of existing
A ‘systemic audit of existing institutions’ is also recommended by
Professor Gabrielle Appleby as a method to determine whether there are
institutional gaps in existing organisations.
Similarly, Ms Gabrielle Bashir SC, member of the Law Council of Australia,
argued that a ‘national integrity system assessment’ is required to determine
whether and where gaps within the existing framework are located.
The NXT agree with the suggestion in Griffith University’s submission that a
new national integrity commission will not provide a solution to gaps in the current
framework, unless this new commission is ’well designed to achieve the intended
An audit of the existing framework would provide a new agency with the ability
to ensure the Commonwealth has a strong anti-corruption framework.
The NXT recommends that the new national integrity commission be
empowered to hold public hearings.
NXT believes in transparency and accountability in the investigation
process. The Australian public have lost confidence in the processes undertaken
by integrity agencies, in part due to the closed-door approach to many
investigations. Greater transparency in the investigation of corruption is
required at a federal level. This can be achieved in part by undertaking public
hearings for corruption matters, which provides people with an insight into how
issues of corruption can be managed and resolved.
The NXT support the model followed by the NSW ICAC which requires that
any public hearing must be approved by a panel of three commissioners who
determine whether the process would be in the public interest. This restructure
was recommended by the Committee on the Independent Commission Against
Corruption in its October 2016 report: Review of the Independent Commission
Against Corruption: Consideration of the Inspector’s Reports.
Investigative journalists Ms Kate McClymont and Mr Michael West who have
reported extensively on state corruption matters, agreed with the new
requirement that a public hearing by NSW ICAC must be approved by a panel of
Requiring a panel of commissioners to consider each matter separately would
ensure that every matter is subject to additional scrutiny and discussion,
which the NXT believes is in the public interest.
The Australia Institute advocates for public hearings and argued that
the 'regular conduct of public hearings' in NSW 'greatly contributed to its
success in investigating and exposing corruption'.
In their submission to the inquiry the Australia Institute also quoted former
officers of the NSW ICAC, including former assistant NSW ICAC Commissioner
Anthony Whealy QC, who has stated that ‘there are many people out there in the
public arena who will have information that's very important to the
investigation. If you conduct the investigation behind closed doors, they never
hear of it and the valuable information they have will be lost’, and former NSW
ICAC Commissioner David Ipp QC who said of the ICAC that ‘[i]ts main function
is exposing corruption; this cannot be done without public hearings’.
Public hearings allow members of the public to access important
information about the issues, and encourage people with relevant further
information to approach the agency and provide evidence. The use of public
hearings is supported by Transparency International, who noted the importance
of potential witnesses coming forward and providing useful information after
the dissemination of initial information through the public hearing process.
The Chief Executive Officer of the Qld CCC, Mr Smith, has stated that in
appropriate situations public hearings are very important, but notes that they
should be carefully used in the right circumstances.
The NXT believe public hearings encourage greater information gathering
processes which lead to better investigations and better outcomes.
The SA ICAC is required to hold all of its examinations relating to
corruption in public administration in private. Previously, SA ICAC’s
Commissioner Bruce Lander has argued that no examinations should be held in
private especially in the case of misconduct and maladministration matters.
The Australia Institute claims that the SA ICAC’s inability to hold public
hearings makes it the least effective of all of the state ICAC bodies, relying
on data such as referral numbers to determine ‘success’.
Any national integrity agency should have the power to hold public hearings.
The NXT believe that the SA ICAC’s inability to hold public hearings is a gross
failure of the design of that commission.
Public hearings also have the benefit of maintaining public confidence
in an integrity and corruption commission process. Professor Anne Twomey
expressed her preference for public over private hearings. She argued that ‘if
you do all of those sorts of things behind closed doors, then there will be a
perception that the system is protecting its own. I think that we have got to
be careful about that’.
During committee hearings Senator Kakoschke-Moore put questions to Mr Ankamah
from Griffith University regarding the connection between a public perception
of corruption and public hearings:
Senator KAKOSCHKE-MOORE: I would like to go to the
issue of a potential federal anti-corruption, pro-integrity commissioner's
relationship with the public, because certainly from what I have read and the
evidence we have heard it seems that the absence of a federal anti-corruption
body is perhaps contributing to the perception that there is corruption at a
Commonwealth level. Mr Ankamah, I wonder if you could tell the committee a
little more about your thoughts about how that relationship should be
developed. In particular, I would be interested to know your thoughts on the
Mr Ankamah: Thanks very much, Senator. I think that is
a very good question. Public hearings are very significant for such a body. In
addition to the agency being able to hold private hearings, in my view, and in
my own research, which I am conducting right now, there are three main things
about public hearings. One of the things they do is that they are able to flush
out more evidence for the agency's own investigations, and they are also able
to build support and make confidence in such an agency. One thing I know is
that when there is so much secrecy in investigations or operations, the public
tends to see it as too secretive and not to believe in what the agency is
doing. That is where the perception comes from that they are being controlled
by some power somewhere. Once there are public hearings then people are able to
participate and to know what is going on. Even those who are not able to
participate are able to read excerpts in newspapers, and so it garners public
support when the reports of such investigations come out. It is also very
important, as sometimes it leads to identification of more systemic corruption.
Sometimes, as was in one of the submissions, the issue is the tip of the
iceberg and it might lead into the lower part of the iceberg. So public
hearings are also very significant in that aspect.
The NXT believes that public hearings are vital in the
anti-corruption process as they ensure public confidence in government bodies
The NXT acknowledges that without appropriate safeguards, public
hearings may have serious consequences for a person’s reputation, especially
where a person is required to answer questions in public in relation to an
inquiry. This potential is amplified when procedures of commissions mirror
court proceedings, or are conducted in conjunction with police investigations.
Mr Michael Griffin, the Integrity Commissioner of the ACLEI noted that in
considering whether to hold a public hearing he first considers whether there
are police investigations afoot as, ‘[i]f I were to conduct a public hearing, I
might prejudice those police investigations or there may be court proceedings
and I would run the risk of prejudicing a fair trial to a person’.
The NXT believes that the decision to hold a public hearing should only occur
if the majority of commissioners determine it is overwhelmingly in the public
interest to do so. Similarly, the procedures adopted by a national integrity
commission should not mirror too closely practices used by the courts. This
will assist in reducing the public perception that being questioned by the
integrity commission is akin to being prosecuted for an offence.
The NXT recommends that the new national integrity commission be
empowered to investigate non-government organisations and agencies who receive
There is currently no purview in South Australia for the state ICAC to
investigate people or organisations who are recipients of public funds, and who
are not public officers or authorities. The inability of the SA ICAC to
initiate these investigations is another failure. SA ICAC Commissioner Lander
supports the investigation of organisations that are provided with public funds
‘if in fact they or their officers engage in corruption’.
Any new federal integrity agency should have the power to follow the path of
public funds and investigate where matters of corruption arise.
A number of witnesses and submissions to this inquiry support the
extension of integrity agencies powers to include the ability to investigate
non-government organisations and agencies who receive public funds. The Gilbert
and Tobin Centre of Public Law recommended that a federal integrity agency have
the power to investigate agencies as well as government contractors.
Professor Brown of Griffith University suggested that a new federal integrity
agency be empowered ‘to follow the dollar and follow the powers’.
This would ensure that where any Commonwealth money or services are ‘being
exercised or delivered on behalf of the Commonwealth as a result of grants
programs or whatever, there should be the ability for the commission to follow
those dollars and follow those powers’.
The Independent Broad-based Anti-corruption Commission Committee also noted
that giving the commission the power to access documentation of individuals and
organisations in receipt of government funding would enhance their ability to
Public funds should be put to public use and any misuse of public funds should
not be tolerated. The NXT believes that there is currently not enough oversight
of non-government organisations and agencies who receive public funds and that
this should be addressed by a new national integrity commission.
The NXT recommends that the new national integrity commission should be
empowered to initiate own investigations into systemic matters of integrity and
A new federal national integrity commission should be able to initiate
investigations into all relevant concerns regarding systemic corruption. This
would ensure that an investigation can be launched without a specific complaint
being made. Professor Appleby stated that ‘any national integrity commission
should be investigating serious or systemic corruption’, with serious
corruption being defined as ‘corrupt conduct that would reduce public
confidence in government and systemic corruption as corruption that
demonstrates a pattern of behaviour’.
Investigative journalist Mr Nick McKenzie of Fairfax media noted that the ‘need
for an ICAC type body arises when you have systemic corruption involving a
number of public officials perhaps’.
The SA ICAC Commissioner has the power to initiate own inquiries and the
committee heard from Commissioner Lander who noted that:
[t]here are some matters that, on reflection, I think I
should have investigated but did not. I think there are a couple of matters
where it would have been better if I had acted on my own initiative where we
did not receive complaints and investigated two particular matters, and I
regret doing that, but the time has passed to make it not relevant any longer.
They were a couple of matters I read about in the media, and
I thought at the time, 'Well, this doesn't seem appropriate,' but did not act
on my own initiative. I should have, I think. They were not reported to me
later, but I think, with the benefit of hindsight, it would have been better if
I had initiated my own investigation into those matters. I think I probably did
not because nobody complained about them, but that really is not a satisfactory
explanation. As I say, I think I should have done that.
The example above indicates that the power to hold own motion inquiries
is essential, however it is equally essential that commissioners use this power
whenever it is required. The NXT supports the new national integrity commission
having own motion powers in order to investigate matters of systemic
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