By A J Brown
Australia’s new National Anti-Corruption Commission is due to begin its operations today. Already there is much talk about who and what it should investigate.
So what kinds of cases can – and will – the NACC pursue? And how will its performance be judged?
The answers will be crucial not only to its own reputation, but overall public confidence in our newly strengthened public integrity system.
Leadership is one key to success
Last-minute compromises in the NACC’s design, like the insertion of the “exceptional circumstances” threshold for Royal Commission-style public hearings, left some wondering about its capabilities.
But as an agency which still clearly has strong powers and substantial resources, its credibility now rests primarily on the good judgement of its leadership and how it performs.
The first signs are good, with widely respected appointments by the government.
The new commissioner, Paul Brereton, is best known as leader of the Australian Defence Force’s difficult and chilling inquiry into war crimes allegations in Afghanistan. Standing down as a NSW appeals judge to accept the NACC appointment, he said he sensed a changing
tide in the affairs of the nation, which might significantly change for the better the governance of our Commonwealth.
Other encouraging appointees include Nicole Rose, the former head of Australia’s anti-money laundering regulator Austrac, and Philip Reed, the former CEO of the NSW Independent Commission Against Corruption.
A clear first case for NACC to handle?
So, what should this capable team sink its teeth into first?
A clear example of the type of case the NACC should take on is the alleged abuse of public office by retiring Coalition frontbencher Stuart Robert.
While he denies any wrongdoing, the amount of taxpayer-funded time Robert is accused of spending on advising and assisting private business associates is enough to justify widespread calls for a NACC investigation.
Now allegations have emerged, which he denies, that businesses planned to secretly channel kickbacks from contracts to Robert or his Liberal National Party fundraising vehicles.
Our research shows this basic question of whether senior officials are misusing their office for personal or political gain, or for friends and associates, lies at the heart of Australians’ corruption concerns.
Vitally, there is now an independent federal agency able to investigate and say clearly if there has been wrongdoing, or not.
Who can bring a case to the agency?
How this case should get to the NACC raises important questions.
Calls for the government to “refer” Robert to the NACC point to a dangerous assumption the agency should only investigate if it receives a specific, official complaint. This risks it being seen as a political “attack dog”.
In fact, any member of the public can ask the NACC to investigate based on their concerns about what has been reported. Or, indeed, even journalists can.
Most of the NACC’s business is actually likely to come from new legal requirements for all public service agencies to notify the commission if they become aware of any issue involving staff that “could involve corrupt conduct that is serious or systemic”. This is a huge step forward.
In the Robert case, Services Australia is already investigating alleged internal conflicts of interest affecting contracts won by the same consulting firm at the centre of the allegations against Robert.
Government Services Minister Bill Shorten has asked his agencies for further advice on how all these allegations should be resolved – but obviously, this is what the NACC is for. From this point forward, the relevant agencies should simply refer such cases without needing to be asked.
Crucially, there’s another way the NACC can decide which case to take on. If its own risk assessments, intelligence or the public debate identify cases of concern, it need not wait for anyone’s “referral”. Under the act which created it, the NACC is free to commence an inquiry into any suspected corruption issue it “becomes aware of”, including on its “own initiative”. Logically, it should do so.
Could PwC be investigated?
Other possible cases are less clear cut – underlining the tests of perceived relevance the new NACC now faces.
There have been prominent calls for the NACC to investigate the PwC scandal. Here, confidential government information about planned tax avoidance laws was used by the consulting firm to help its clients avoid the crackdown. Other similar conflicts of interest continue to be revealed.
But legal experts are rightly doubtful whether the NACC could investigate. While the agency can probe allegations of improper release of government information or corruption within a “contracted” service, PwC’s conduct was part of its own business and most likely falls outside the NACC’s government-focused jurisdiction.
There is also uncertainty over when and how the agency will investigate misuse of public funds for political pork-barrelling, such as the Morrison government’s sports and carpark rorts. Or the Australian National Audit Office’s most recent scathing report on the government’s even larger health and hospital funding program.
The NACC’s scope extends to “grey area” and political corruption, like pork-barrelling. However, this is only if it involves a breach of public trust or could adversely affect the honesty or impartiality of a public official’s work and the problem is serious or systemic.
It’s not yet clear how these thresholds will be met.
Why other reforms still matter
The uncertainties are a reminder not to expect more of the NACC than it was designed to deliver – and that other reforms are still key to ensuring government integrity.
For example, it is hard to imagine a more serious lapse of public integrity than the Robodebt scandal.
However, this is not the type of case the NACC is ever likely to investigate, because no personal corruption was involved. To prevent such massive failures of fairness, transparency and legality, we need other reforms, such as a far more robust Commonwealth ombudsman.
A revamped Australian Public Service Commission, effective Independent Parliamentary Standards Commission and overhauled political finance laws are all key for ensuring a true culture of integrity. The NACC will play a vital supporting role, with its strong new corruption prevention powers. But the body can’t do it all.
Similarly, everything hinges on stronger whistleblower protections. But while there have been some welcome first steps, there is much more to be done.
For instance, we need better protections for public and private employees alike, backed up by a whistleblower protection authority. Again, this work goes beyond the NACC, but the commission’s credibility will depend upon it.
Expectations are very high
Of course, there’s even more which will influence the NACC’s effectiveness, including:
- how it balances the need for transparency with its often secret operations
- whether its work leads to timely prosecutions, sanctions and positive change, and
- whether it completes its own inquiries in a timely way – one of the biggest criticisms of the landmark NSW ICAC findings against former premier Gladys Berejiklian and state MP Darryl Maguire.
The NACC will need to be politically visible, yet totally independent. It must be scrupulously meticulous, but also clear-minded, values-driven and brave.
All this is possible. But after years of growing expectations, the NACC certainly has no small task.