Commonwealth Integrity Commission Draft Bill Falls Short

Today the Attorney-General Christian Porter has released the exposure draft of the Commonwealth Integrity Commission legislation for public consultation.

The National Integrity Committee intends to participate in the consultation process as outlined by Minister Porter and looks forward to making a submission regarding the draft legislation and to an invitation to participate in a roundtable meeting or other stakeholder session in the November 2020 to March 2021 period.

What is most apparent from the outset is the Commonwealth Integrity Commission as currently proposed falls short in several key areas:

  • The definition of corrupt conduct is too narrow. It excludes anyone outside the public sector who dishonestly or improperly influences or attempts to influence the probity and efficacy of public decision-making. This is not the case in most state jurisdictions.
  • Public sector corruption can only be investigated if a criminal offence has been or is being committed (contrast with the law enforcement division of “ corruption of any other kind “ where there is not a criminal threshold).
  • No findings of corrupt conduct are possible for parliamentarians or public servants in a final report. 
  • No public hearings for parliamentarians or the public sector.
  • In the case of the public sector and for parliamentarians, no provision for whistle-blower complaints.
  • The commission cannot investigate on its own initiative in the case of public sector and Parliamentary corruption. It can do so for law-enforcement corruption.
  • The threshold for investigation to proceed is too high – only if there is a reasonable suspicion that a listed offence has been committed or is being committed.

“The National Integrity Committee has been deeply involved in establishing the basic principles necessary for the design of a successful and effective integrity commission,” said The Hon David Harper AM QC, former Judge of the Victorian Supreme Court of Appeal.

“The omission or downgrading of any of the essential design principles identified would actually destroy the effectiveness of a federal anti-corruption body and will allow serious corruption to go largely undetected.

“The draft legislation released today falls well short of what is required for an effective anti-corruption commission.  The model proposed by the Government will fail to ensure corruption is stamped out at the Federal level. A toothless watchdog that fails to hold politicians to account risks further eroding confidence in our political and democratic processes.

“The Integrity Bills introduced by Dr Helen Haines MP are significantly better designed than the Governments proposals. Her Bills should be debated by the Parliament.”

 The National Integrity Committee’s Principles for Designing a National Integrity Commission are that the Commission:

  • is an independent statutory body that is provided with the required resourcing to enable it to promote integrity and accountability and to enable it to prevent, investigate and expose corruption.
  • has broad jurisdiction, including the ability to investigate any conduct of any person that adversely affects or could adversely affect, directly or indirectly, the honest or impartial exercise of public administration, if the Commissioner deems the conduct to be serious or systemic.
  • is granted the investigative powers of a Royal Commission to undertake its work, to be executed at the discretion of the Commissioner.
  • may hold a public inquiry providing it is satisfied that opening the inquiry to the public will make the investigation to which the inquiry relates more effective, and would be in the public interest.
  • is governed by one Chief Commissioner and two Deputy Commissioners, appointed by the Minister on recommendations from a bipartisan Parliamentary committee. The Chief Commissioner is to be appointed for fixed non-renewable 5 year term, and must be a judge or a retired judge or be qualified for appointment as a judge.
  • is empowered to make findings of fact, to be referred to a well-resourced and specialised unit within the DPP for consideration for prosecution.

The National Integrity Committee’s Principles for designing a National Integrity Commission can be found here.

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