On 24 February 2016, the Senate resolved to establish a Select Committee on the establishment of a National Integrity Commission. This Select Committee was established to inquire into whether a national integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.
Thirty one submissions were received, including one from Accountability Round Table. The Select Committee was intended to report to the Senate on or before 22 September 2016. However the last Federal Election intervened, (2 July 2016) and the Select committee lapsed as all the parliamentary committees of the 44th Parliament ceased to exist.
It is still possible for this committee to be re-established in the 45th Parliament, however this is yet to occur.
However for students of reform to accountability and transparency, the submissions received by this committee including ours are useful reading for anybody interested in pursuing this matter further.
The full set of submissions on establishment of an National Integrity Commission (or as it is sometimes colloquially known, “a Federal ICAC”) to this Select Committee can be found here (of which ARTs is the last, on page 2).
Our own submission is reproduced below.
The Establishment of a National Integrity Commission
Submission of the Accountability Round Table to the Select Committee on the Establishment of a National Integrity Commission.
Introduction
The Select Committee has invited the Accountability Round Table (ART) to make submissions on two issues by email sent on 8 April 2016. The principal issue is the adequacy of the Australian Government’s framework in addressing all facets of corruption and misconduct, with reference to the effectiveness of current agencies and commissions in preventing, investigating and prosecuting corruption and misconduct. The purpose of this submission is to call for a single over-arching national body addressing the risk of corruption in government and those dealing with government.
Principles of effective anti-corruption bodies
ART has set out consistent principles for an effective anti-corruption regime, and the reasons why such a regime is needed and essential for the Commonwealth of Australia in several previous submissions to committees and departments of the Commonwealth Parliament.
Most recently, previous submissions were collected and appended to a submission to the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (ACLEI) and its jurisdiction, the submission being dated 16 May 2014. That submission attached three previous submissions as appendices –
(a) ART submission to Parliamentary Joint Committee on ACLEI, January 2011;
(b) ART submission to Review of Australia’s implementation of UNCAC, June 2011;
(c) ART submission to the International Review of Australia’s implementation of UNCAC, March 2012.
The whole of the submission of 16 May 2014, together with the three appendices, is Attachment 1 to this submission.
Also attached as Attachment 2 is an Article published in the Victorian Bar Journal entitled “Why We Need A Federal Anti-Corruption Body” by the Hon. Stephen Charles QC, published in Issue 156, 2014. Mr Charles is a member of the Board of the ART.
Evidence of lack of effectiveness and high risks of corruption
The ART contends that Article 361 of the United Nations Convention against Corruption ( UNCAC) requires Australia to ensure the existence of a body or bodies specialised in combatting corruption through law enforcement, and able to carry out their functions effectively and without any undue influence. The only body with any relevance to such an obligation in Australia is ACLEI. The submissions already referred to argue that ACLEI’s legislation merely establishes a framework under which each agency covered by it must set up corruption controls and the agency head must notify the Integrity Commissioner of any information or allegation that raises a corruption issue in that agency. The government’s approach is therefore that no single body should be responsible, rather there should be a range of bodies and governmental initiatives to promote accountability and transparency.
ART contends that, with no single body being responsible, the multi-body approach and shared responsibility results in no body having ultimate responsibility and each body involved being likely to assume that all is well because there is someone else making sure that no corruption is occurring. That ACLEI’s jurisdiction and functions are quite inadequate is proved beyond question, in ART’s submission, by the happening of a succession of scandals in the Commonwealth arena, occurring while ACLEI was the only body supposedly in charge of investigating corruption in that area.
Australia is not only a signatory to UNCAC, but it has also ratified the OECD AntiBribery Convention. Since 2013, it has also been a member of the Open Government Partnership. Until very recently, Australia had failed completely to honour its obligations under that Partnership. Australia’s failures in honouring its obligations under each of these treaties and agreements must severely damage our reputation as a safe and secure investment and trading partner. It also sends a very poor message to the whole financial world and must create real risks of higher interest rates and lower credit ratings from the International ratings agencies.
The extensive evidence of corruption in the Commonwealth area up to 2014 is detailed at length in the contentions of the submissions which now make up Attachments 1 and 2.
Since the previous submissions, a great deal of relevant evidence and allegations have emerged, largely in an area supposedly under Commonwealth supervision –
1. A series of scandals have engulfed the major banks in our banking system. These commenced with problems arising during the Global Financial Crisis, demonstrating large numbers of investors receiving advice from and through banks where major conflicts of interest were involved; then evasion of tax; efforts to avoid insurance payouts; the pursuit of small investors with losses resulting from bank-financed fraudulent investment schemes; and collusion to manipulate interest rates.
2. ASIC, which should have a major role in supervision of this area, had its budget cut by $120 million over four years, by this government’s first budget. ASIC itself submitted to a Senate inquiry into ASIC’s handling of financial scandals that it lacked the weapons to deal with bank misbehaviour, and that penalties for misbehaviour are inadequate.
3. The Australian Federal Police are repeatedly said to be underresourced and unable to deal adequately with allegations of corporate and banking fraud.
4. The Age newspaper, on Friday 15 April, alleged that corruption and cover-ups in the Leighton Holdings international construction empire were rife, one allegation being of multi-million dollar kickbacks in Iraq, Indonesia, Malaysia and elsewhere, company documents revealing “a culture of rewarding corruption or incompetence, and abysmal corporate governance.”
5. The Australian newspaper on March 6, 2015, quoted Senator Sam Dastyari as allegedly holding documents supporting claims of bribery by major companies, including Leighton, BHP Billiton and Thiess Mining, in countries such as Indonesia, India and China. The senator alleged Australia had not taken the necessary steps to tackle the growing issue of foreign corrupt practices.
6. The publication last week of the Panama Papers, leaked from the Panamanian firm of Mossack Fonseca & Co, which allegedly operates across 21 tax havens, in which it is claimed that several thousand Australians have offshore accounts in such tax havens. The Australian Tax Office is said to be investigating more than 800 high net worth Australian clients of the Panamanian firm. The files are alleged to show how the firm thwarted Australian regulators and police inquiries and continued to act for individuals accused of fraud and embezzlement.
7. Australia’s woeful campaign finance laws have not been improved or strengthened.
8. It has been alleged that Clive Palmer’s use of Queensland Nickel as a “piggy bank” for himself and his family and related political contributions has reduced the company to insolvency, breaching various sections of the Corporations Code, and causing 600 workers to lose their jobs. He now faces an enormous tax bill. There is little or no evidence of effective supervision by any corporate regulatory body of Mr Palmer’s activities, notwithstanding a high degree of publicity that was attracted to them.
9. In 2012, Australia was rated seventh on the International Corruption Index maintained by Transparency International. In the ensuing years, Australia has dropped six places to 13th, and it can safely be predicted that recent developments will be followed by a further fall.
10. Until 2011, Victoria had no anti-corruption commission, Liberal and Labor premiers consistently maintaining that one was not necessary since Victoria had no corruption problem, and that there was no evidence of significant corruption. In 2011 the Independent Broadbased Anti-corruption Commission (IBAC) was established. The IBAC legislation included significant thresholds to be overcome before IBAC could commence an investigation, and it was necessary for IBAC to be given a reasonably detailed complaint by a whistle-blower before IBAC could commence any investigation. The IBAC legislation, which did not even include the offence of misconduct in public office in the definition of corrupt conduct, was widely attacked as creating a paper tiger, a sham commission which was not intended to be effective. Even so the very limited IBAC in two recent public investigations has demonstrated rampant corruption in both the Victorian Education and Transport departments.
11. The same claim, lack of evidence, or any need for, a Federal Anticorruption commission, has been made by a number of recent Prime Ministers. The ART’s response is, in light of the accumulating evidence of scandals and corruption to which reference has already been made, that there is a desperate present need for an effective anti-corruption body.
Further reasons for establishing a federal anti-corruption body
The ART’s argument in favour of a federal anti-corruption commission is that corruption in government and by those dealing with government, occurs when and where money, power and influence are found and persons pursue them in a criminal or improper way. We refer to the matters raised above and, in particular, the evidence of a growing culture of dishonourable conduct in the commercial world in Australia.
Each State in Australia now has an anti-corruption body. But by far the largest quantity of money, power and influence is in the control of the Commonwealth Government in Canberra. There is no reason to assume that the corrupting influences that exist in Sydney, Melbourne or Perth do not operate in Canberra, where the Federal government each year purchases tens of billions of dollars of goods and services. In 2009 alone, the Defence department sought more than $45 billion worth of tenders.
The financial scandals of recent times commenced with the Australian Wheat Board during the Iraq War. This was followed by the foreign bribery allegations which concerned Note Printing Australia and Securency, which produced and sold bank notes to the Australian and overseas governments. Those companies were subordinates of the Reserve Bank of Australia. The abundant evidence of corruption in Federal agencies is detailed in the submissions in Appendix 1 and summarised in Appendix 2. It is then compounded in the matters previously mentioned in this submission.
The ART’s case for the necessity of the establishment of an anti-corruption commission in Canberra relies also on the risks of corruption having increased in recent years for a variety of reasons. These include the increase in governmental control of information, the ever-increasing need for funding of political campaigns, the methods employed by government and the failure to enact legislation to provide adequate controls and transparency, the commercialisation of government services and projects, the development of lobbying, the inadequacies of any attempt to control that activity and make it transparent in a timely manner, and the failure to stop or control the flow of Ministers and their staff to the lobbying industry on retirement from their positions. Combined with these factors there is an increased risk of corruption resulting from the impact on major vested commercial interests of the significant changes that will be needed to address the problems posed by climate change and the exhaustion of natural resources, including energy, water and phosphate.
Relying on co-operation between a range of bodies covering only part of the activities of the Commonwealth was never a satisfactory approach to the prevention of corruption in the Federal area, and has been shown to be completely ineffective.
It is high time that a comprehensive independent integrity system was created for the Commonwealth, incorporating a general purpose Commonwealth Anticorruption agency with educative, research and policy functions and all necessary powers and which is subject to an inspector and parliamentary oversight.
Accountability Round Table
30 April 2016