Two recent polls of the Australian public make two things quite clear: the Australian people have little trust in their federal politicians, and they want a federal anticorruption agency to investigate misuse of public office. This is perhaps not surprising given the string of scandals that have come to light in the past few years (see, for example, here, here, and here). And ordinary citizens are not alone: a survey of government workers found that thousands believed they had witnessed acts of corrupt behavior, particularly cronyism and nepotism. And a group of 34 former Australian Judges, including a former Chief Justice of the High Court, have published an open letter to Prime Minister Scott Morrison stating that Australian trust in federal politics is at an all-time low due to perceptions of corruption, and that a federal anticorruption agency is the necessary response.
It is therefore unsurprising that the proposed creation of a federal anticorruption agency has emerged as a salient issue in the upcoming federal elections, to be held on May 18 (one week from tomorrow). The Morrison government initially dismissed the idea, but in December 2018 changed its tune and announced that, if the Liberal Party (Morrison’s party) wins the election, the government would create a Commonwealth Integrity Commission with two separate divisions: a law enforcement integrity division and a public sector integrity division. The former would have the power to investigate police officers and other law enforcement personnel, while the latter would have the power to investigate politicians.
Unfortunately, while a federal anticorruption agency is an idea whose time has come, the Morrison government’s proposal suffers from four key shortcomings:
- First, the proposed agency would only be able to investigate corruption upon a referral from the Australian Federal Police or from the head of another federal agency, meaning that the federal watchdog would lack genuine autonomy. It is difficult to see why Australians would perceive federal politicians as any less corrupt if the new agency brought in to allay their concerns conducted investigation largely at the behest of those same politicians. To be effective, a federal anticorruption agency should have the independence to follow its own nose—and to respond directly to anonymous tips, something that has proven important for Australia’s existing state-level anticorruption commissions (see here, for example).
- Second, and relatedly, the proposed agency would only be able to commence an investigation when it has “reasonable suspicion” of a criminal offence relating to corruption. But as prominent critics have pointed out, at the state level successful prosecutions had their genesis in anonymous phone calls or similar leads that would not by themselves have satisfied the “reasonable suspicion of a crime” standard. The decision to commence an investigation should be left to the agency’s discretion, so that it could investigate sufficiently serious allegations even if the initial lead is not particularly strong.
- Third, the proposed agency would operate largely in secret. It would not be able to hold public hearings into allegations of corruption or publicize any findings. Former Victorian Court of Appeal Justice Stephen Charles was particularly critical of this, noting that the ability to operate in public would be necessary to make citizens understand the nature of corruption and the harm that it does to society.
- Fourth, the proposed agency’s jurisdiction is limited to investigating criminal offenses. Yet much of what upsets Australian citizens, and undermines their confidence in the integrity of their federal government, would likely be classified as “influence peddling” rather than actual (criminal) misfeasance in office. For example, “revolving door” practices –where former federal politicians or their staff assume executive, lobbying, or consultancy roles in corporations or other institutions with interests affected by government decisions—are widespread in Australia, raising significant concerns about conflicts of interest. (For examples, see here, here and here.) Addressing the relationship between federal politics and special interest groups is the key to restoring public confidence in federal politicians. This could be achieved by introducing legislation alongside the new anticorruption agency that strengthens Australia’s lackluster lobbying laws by restricting the ability of politicians to assume post-politics roles with particular entities. Any new federal anticorruption agency ought to have the authority to address these issues, in addition to violations of the criminal law.
It is an exciting time for those with an interest in Australian anticorruption efforts, especially since both major parties have promised to introduce a federal anticorruption agency if elected. But the Morrison government’s current proposal falls well short of what is needed. Indeed, David Ipp (a former Justice of the New South Wales Supreme Court of Appeal and former commissioner of the New South Wales state anticorruption agency) has aptly described the proposed federal agency as the “kind of integrity commission that you would have when you don’t want to have an integrity commission.” I am hopeful that the Morrison Government’s proposed agency will serve as a blueprint only, and that whichever party is elected will make the improvements that are so desperately needed. However, like many Australians, I will remain skeptical until I have reason not to be.