A federal anti-corruption commission for Australia – a key pledge by the victorious Australian Labor Party at the 2022 election – is moving closer to becoming a reality, with the Albanese government introducing legislation to parliament last week.
Announcing $262 million over four years for the establishment and ongoing operation of the so-called National Anti-Corruption Commission (NACC), Attorney General Mark Dreyfus declared that those engaged in corrupt conduct should “be afraid”.
“This government takes its commitments seriously. And we are serious about restoring trust and integrity to government,” Dreyfus told parliament.
“This legislation delivers the single biggest integrity reform this parliament has seen in decades.”
After the 236-page National Anti-Corruption Commission Bill was released last week, the Melbourne School of Government’s Renewing Democracy program hosted experts to unpack some of its contents.
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Simply having the Bill on the table was the result of “years of campaigning by lawyers and academics”, said Dr Yee-Fui Ng of the Australian Centre for Justice Innovation at Monash University.
There are a range of existing national integrity agencies like the Ombudsman and the Auditor General, but their work is done privately, and they “don’t have the teeth in the sense they can’t compel departments to do things” and rely on media attention to effect change, Dr Ng explained.
“The NACC fills the gap of having a very public commission that can conduct public inquiries,” she said.
Should NACC hearings be held in private?
The Bill will soon enter the parliamentary committee phase, with many people and organisations poised to contribute on how the legislation can be improved, said Professor Kristen Rundle of Melbourne Law School.
The Bill needs to be thought of as a draft, she said, adding it may yet undergo quite a bit of change. “The question is: just how much change?”
Indeed, the legislation is not without its critics.
Some, including independent Senator Jacqui Lambie, have expressed concern that under the government’s legislation most investigations would be conducted in private rather than publicly.
The government's Bill currently reads that: “A hearing must be held in private, unless the Commissioner decides to hold the hearing, or part of the hearing, in public.”
Hearings will only be held in public in “exceptional circumstances” or if it is deemed in the public interest to do so.
By contrast, the New South Wales’ Independent Commission Against Corruption (ICAC), often considered the 'gold standard' integrity commission in Australia, holds many of its inquiries publicly.
But the Liberal-National Coalition has expressed concern that public investigations can lead to what it has characterised as “show trials”.
High-profile, public investigations can do reputational damage to politicians or other officials, even if they are eventually found not to have engaged in corrupt conduct.
Still, the Liberals cannot be seen to oppose an anti-corruption commission or else “find them even more in the wilderness than they already are”, said former ABC Melbourne presenter and Vice Chancellors Fellow at the University of Melbourne, Jon Faine.
Focus groups were telling the Coalition that “if you’re against the NACC, then you’ve lost face with the community, the voters,” Faine said.
Technocratic solutions, politics and grey corruption
Asked by Professor Rundle whether the NACC was being introduced because existing institutions were not capable of doing the work required of an integrity commission, Associate Professor Will Partlett of Melbourne Law School said there was growing concern in the community over whether parliament is able to fulfill its role as an accountability mechanism.
“This institution is an additional check and balance,” he said, adding that the NACC was a technocratic rather than political solution. “We’ve given up on politics.”
Dr Partlett said though, that one of the problems with the NACC is that it would invariably become a “political football”. Important questions during its design were thus how the NACC will be funded and how it relates to parliament.
“It’s not independent of politics. We have to see how it fits with other institutions of our Westminster system,” he said.
“It has to be part of politics … it has to be ultimately reined in by us, the people.”
Dr Ng explained that under the proposed legislation, the NACC would not be equipped to deal with certain kinds of corrupt conduct, such as that pertaining to political donations or pork barrelling.
The NACC represents a “new, important and powerful body but there still needs to be some tinkering around the edges to address those issues of grey corruption,” she said.
Transparency International, meanwhile, has called for strengthening whistle-blower protections in the Bill.
Whatever final form it may take, the NACC “will become law … we will have an anti-corruption agency”, said Faine.
The 2021 federal election was fought on the issues of climate, integrity and sleaze. “These things will be resolved as issues and we will move on,” he said.
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