The Case for Action on A National Integrity Framework

by Ken Coghill (Member of Interim Working Group, Australian Open Government Partnership National Action Plan)

Reform in this area would reduce the risks of corruption of types and areas of government activity not caught by Australian Commission for Law Enforcement Integrity (ACLEI)’s current remit.

This case addresses the OGP Grand Challenge:

Increasing Public Integrity—measures that address corruption and public ethics, access to information, campaign finance reform, and media and civil society freedom.

This grand challenge reflects the public trust principle whereby public officers – politicians, members of the executive, the staff of their offices and instrumentalities – are responsible for the public trust and must put the public interest ahead of personal, political and other private interests.

The Accountability Round Table (ART) has set out:

consistent principles for an effective anti-corruption regime in three previous submissions to (the Inquiry Into The Jurisdiction Of The Australian Commission For Law Enforcement Integrity, Parliamentary Joint Committee On The Australian Commission For Law Enforcement Integrity) and departments of the Commonwealth.

The main recommendation of each of (those) submissions (was) that to satisfy Article 36 and the spirit and intention of UNCAC, the jurisdiction of ACLEI should be extended to provide a single national anti-corruption and malpractice body with a jurisdiction giving it comprehensive coverage of the whole Commonwealth sector.

The current multi-body approach is inadequate. ART has argued that 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.

As ART suggests, Australia has severely limited national facilities to address corruption, not-with-standing that the States have corruption control commissions with strong investigative powers akin to those of royal commissions.

Australia’s domestic national (“Commonwealth Government”) performance fails to match the leading roles it has played internationally, such as in the development of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention) (1997) and the United Nations Convention Against Corruption (UNCAC) (2004).

The Australian Commission for Law Enforcement Integrity (ACLEI) is limited to investigating alleged corruption in specified instrumentalities of the national government, largely focussed on customs and border security. Whilst smuggling and false passports and visas are important sources of corruption, ACLAI’s brief fails to deal with one of the most serious forms of corruption potentially affecting any organisation – procurement fraud. This is especially significant where huge sums are involved such as in contracts for defence equipment, as has been observed in many national and sub-national jurisdictions.

In addressing Increasing Public Integrity, the Government has previously taken an incremental approach involving small, infrequent extensions to ACLEI’s coverage and arguing against proposals for further instrumentalities to be added and vigorously opposed a general power to investigate all uses of Commonwealth powers e.g. investigative powers similar to those of the NSW Independent Commission Against Corruption (ICAC).

Furthermore, resource constraints left ACLEI with a large backlog of 100 integrity issues (allegations of unknown significance), as became apparent in testimony by Pezzullo (Secretary, Department of Immigration and Border Protection) before a Senate Estimates Committee hearing on 17th October.

As a consequence, the national government remains highly vulnerable to its public officers being inveigled into misconduct in public office in cases of procurement ranging from items as simple as office consumables to massive defence expenditure. State commissions have investigated and exposed comparable instances, leading to the prosecution and conviction of the public officers involved and savings of large sums of public money.

There is no reason to believe that Commonwealth public officers, suppliers and contractors are any less susceptible to corrupt behaviour.

As recommended by ART,

  1. ACLEI’s jurisdiction should be extended to provide a single national anti-corruption and malpractice body with a jurisdiction giving it comprehensive coverage of the whole Commonwealth sector, including:
    • (i) the entire Department of Agriculture;
    • (ii) each of the Australian Securities Investment Commission, the Attorney-General’s Department and the Australian Taxation Office;
    • (iii) the Department of Immigration and Border Protection;
  2. ACLEI’s jurisdiction should be neither activity-based nor jurisdiction-based. Its jurisdiction should be extended, as submitted above, to provide a single national anti-corruption and malpractice body;
  3. The most appropriate method of implementing any such change to ACLEI’S jurisdiction would be by reviewing all related matters, including relevant definitions, such as definitions of corruption and malpractice, and the adequacy of –
    • (iv) the educative, research and policy functions;
    • (v) preventative measures and measures which act to facilitate the co-operation of parliamentarians and the whole commonwealth sector, and to prevent political resistance to building an anticorruption culture;
    • (vi) measures which require complainants to maintain absolute secrecy as to the making of a complaint to the Commission until the Commission itself makes public that such a complaint has been received;
    • (vii) the system for coordinating the work of all Commonwealth agencies involved in monitoring and investigating misconduct;
    • (viii) existing powers, including investigatory powers and whether additional powers are required; and
    • (ix) the resourcing needed to ensure that the comprehensive jurisdiction can be adequately serviced.

Such reforms, together with adequate resourcing, would enable Australia to address the OGP Grand Challenge of Increasing Public Integrity.

Who wants ambitious reform in this area included in Australia’s First OGP National Action Plan?

Add your name to support reform

  • Bruce Healy
  • Lachlan Musicman
  • Angela Daly
  • Peter Crane