Posted 18/04/2019 by Cat Barker

Australia looks set to have a National Integrity Commission (NIC) of some description in the near future, with the proposal now supported by the Coalition, the Australian Labor Party, the Australian Greens and at least some of the current cross-bench. However, there is disagreement on the particular model to be adopted and differences in the published costings. In light of the funding in the 2019–20 Budget for a Commonwealth Integrity Commission (CIC), this FlagPost provides a brief overview of the different models.

Australian Greens

The creation of an NIC is a long-standing policy of the Greens. In August 2009, the then leader of the Greens, Senator Bob Brown, put forward a motion calling on the Rudd Government to consider the establishment of an NIC. It was not passed, with Labor and Coalition senators voting against it. The Greens have since introduced Bills to establish an NIC in 2010, 2012, 2013 (restored to the notice paper in 2016), 2017 and 2018.

The National Integrity Commission Bill 2018 (No. 2) is based largely on the Bill introduced by the Independent Member, Cathy McGowan (see below), with two key changes: a more restricted definition of ‘corrupt conduct’ in relation to current and former public officers (see subclause 9(4)) and limiting investigations of conduct that occurred before the provisions commence to the preceding ten years.

The Greens’ 2019 election policy states that its proposal for a federal anti-corruption commission has been costed by the Parliamentary Budget Office (PBO) at $75.6m over the forward estimates.

Australian Labor Party

For many years, Labor remained open to considering an NIC, but said that the case had not yet been made to establish one. Then in January 2018, Labor announced it would establish an NIC, with legislation to be introduced within 12 months of being elected to government.

Although Labor has not set out its model in detail, it has stated that it will be based on seven principles. These include that the NIC would:

‘operate as independent statutory body, with sufficient resources to ensure it is able to carry out its functions regardless of the government of the day’

have ‘sufficiently broad jurisdiction and freedom of action to operate as a standing Royal Commission into serious and systemic corruption by Commonwealth parliamentarians or their staff, public servants, statutory office holders, the Commonwealth judiciary and the Governor-General’

be granted the investigative powers of a Royal Commission

have the discretion to hold public hearings when it determines that it is in the public interest and

be empowered to make findings of fact (and to refer actions that may constitute criminal conduct to the Australian Federal Police (AFP) or the Commonwealth Director of Public Prosecutions (CDPP)).

Labor’s policy stated that its proposal had been costed by the PBO at $58.7 million over the forward estimates, but that the final costs would be determined once the design was finalised. Following the 2019–20 Budget, Labor stated that it would ‘at least be matching’ the Government’s funding commitment, and would go further if necessary.

Cross-bench Bill and views

Current independents Andrew Wilkie, Cathy McGowan, Kerryn Phelps and Senator Tim Storer, and cross-benchers Rebekha Sharkie, Bob Katter and Senator Rex Patrick all support an NIC (although Ms McGowan and Senator Storer will not be re-contesting their seats at the 2019 election). Ms McGowan’s National Integrity Commission Bill 2018, which she introduced in November 2018, would establish an NIC that includes a National Integrity Commissioner and a Whistleblower Protection Commissioner, and incorporates the existing Law Enforcement Integrity Commissioner. The National Integrity Commissioner would be responsible for investigating suspected corruption (based on a broad definition of ‘corrupt conduct’), and for promoting integrity and preventing corruption, including assisting agencies with preparation of biennial integrity and anti-corruption plans, providing education and training, developing and implementing a research strategy and leading and coordinating national efforts to prevent, detect, reduce and remediate corruption.

Coalition

Having previously resisted calls for an NIC, the Government announced in December 2018 that it would establish a CIC and released a consultation paper on its proposed model. The Government then sought public submissions and established a Review Panel to advise it on development of legislation for the CIC (37 submissions have been published on the Attorney-General’s Department website).

The proposed CIC would consist of a law enforcement integrity division (LEID) that continues the current structure and remit of the Australian Commission for Law Enforcement Integrity (ACLEI) (with its jurisdiction extended to four additional agencies) and a public sector integrity division (PSID) to cover the remaining public sector. The LEID would investigate corrupt conduct (giving priority to serious and systemic corruption) on the basis of the existing definition of corrupt conduct in the Law Enforcement Integrity Commissioner Act 2006. The PSID would only investigate ‘conduct capable of constituting a nominated range of specific criminal offences. It will only investigate criminal offences, and will not make findings of corruption at large’. The threshold for commencing investigations would be higher for the PSID and while the LEID would have discretion to hold private or public hearings, the PSID would be limited to private hearings. The CIC would also have responsibility for prevention, analysis and outreach activities across government.

The 2019–20 Budget allocated $104.5 million over four years (including capital funding of $10.0 million) to establish the CIC.

Some key points of difference

Overall, the Government’s proposed model limits investigations to a narrower range of suspected corrupt conduct than the NICs proposed in the Greens and McGowan Bills, largely because of limitations on the PSID in both the definition of corrupt conduct and the threshold for commencing an investigation. While Labor’s policy does not include a proposed definition of corrupt conduct or threshold for investigation, the Shadow Attorney-General’s criticism of the limits placed on the PSID suggests that Labor expects its model to have a broader remit.

Under the Greens, McGowan and Labor models, the NIC would have the discretion to hold public hearings. Under the Government’s proposal, only the LEID component would have the discretion to hold public hearings (as ACLEI currently does). Existing state and territory anti-corruption commissions are able to hold public inquiries or hearings if the relevant threshold is met.[1] The Senate Select Committee on a National Integrity Commission reported that ‘The effectiveness and use of public versus private hearings by state anti-corruption agencies, and whether or not an NIC should be empowered to hold public hearings were the subject of lengthy debate’ during its inquiry, but it did not make a recommendation on the matter.

The Senate inquiry also considered evidence on the appropriate role of the proposed NIC in making findings of corrupt conduct. The Greens and McGowan Bills appear to allow the NIC broad discretion to make reports (including findings and recommendations) about corruption issues (in line with ACLEI’s current powers). Under the Government’s model, the PSID ‘will not make findings of corruption at large’. This approach is intended to avoid what the Government considers to be a ‘key flaw’ of various state agencies—that ‘findings of corruption can be made at large without having to follow fundamental justice processes’. Labor’s proposed NIC appears to fall somewhere in between: it ‘will only be empowered to make findings of fact’, with ‘findings that could constitute criminal conduct’ to be referred to the AFP or the CDPP.

The Greens and McGowan Bills would each establish a Whistleblower Protection Commissioner within the NIC, the functions of which would include receiving and investigating ‘disclosures of wrongdoing’ and providing ‘advice, assistance, guidance and support to persons and agencies who disclose wrongdoing’. The Government and Labor proposals are silent on this aspect, though Labor has separately committed to establishing a Whistleblowing Protection Authority.

All of the proposals include broader preventative and educative functions for the NIC/CIC. However, the lack of detail on this aspect in the Government and Labor proposals makes it difficult to draw any meaningful comparisons on the scope of those functions.