Accountability and the Law: Anti-corruption agencies in Australia

by David Ipp

Corrupt conduct has always been part of human society, and has caused the downfall of empires and societies including the Romans and the Ottomans. It erodes public trust in government and encourages citizens to also act unethically. We must remain absolutely intolerant of public corruption.

It is wishful thinking that corruption is endemic in New South Wales (NSW) but not in other states or at a federal level. It is true that those who combat corruption in NSW were more successful in exposing evil in others, but this says more about NSW ICAC’s success than the prevalence of corruption nationally.

How to combat corruption is controversial, particularly the powers that anti-corruption commissions should be given and the processes that they should adopt. Complete liberty is not compatible with complete equality. The evil and destructive consequences of corruption must be weighed against the detraction of civil rights that a powerful anti-corruption commission may cause.

The investigation and exposure of corruption is extremely difficult, as secrecy is at the core of corruption and those involved are usually experienced, well resourced, and well protected legally and politically.

Specialist anti-corruption agencies with powers and resources are needed to fight corruption effectively. Internationally the police have failed due to lack of knowledge, resources and will. In the USA the FBI investigates corruption and in the UK, the Serious Fraud Office and the Organised Crime Office.

NSW ICAC was once regarded as an international model of best practice, but recent changes to its powers and resourcing has damaged its effectiveness. The other anti-corruption agencies in Australia lag far behind in terms of powers, resourcing and demonstrated impact, some deserving the appellation of Clayton ICACs – the ICAC you have when you don’t want a real ICAC.

The decline of NSW ICAC is a salutary example of how political interference can harm an effective anti-corruption agency. In the creation of a federal ICAC, care needs to be taken to give it protection against this kind of interference.

The principal statutory object of an anti-corruption agency, namely the exposure of corruption, cannot be achieved without public hearings.

When discussing a possible restraint on a Royal Commission’s public hearings, Sir Anthony Mason, former Chief Justice of Australia, said that the denial of public proceedings brings an atmosphere of secrecy, speculation, and stops potential witnesses coming forward. He said that publicity is the ultimate aim of a Royal Commission.

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