Anti-corruption bodies in 2021 and their impact on the 2022 elections
Ryan Feuerherdt
08.06.2022
Heading into the final weeks of the 2022 federal election campaign, it was difficult to avoid the extensive discussion devoted to the issue of government accountability and integrity.
The failure of Scott Morrison’s Coalition government to implement an anti-corruption body was successfully targeted by the Australian Labor Party, the Greens, as well as the various ‘teal independents’, throughout the campaign.
All Australian jurisdictions, other than the Commonwealth, have an anti-corruption body –whether it be styled as an ‘Independent Commission Against Corruption’ (ICAC) or some other commission. As the name suggests, anti-corruption bodies are generally responsible for ‘preventing, detecting, exposing and remedying’ corruption, and maintaining proper integrity and transparency in politics and the public service.
This blog post will consider two Australian jurisdictions: the Commonwealth and South Australia. In both jurisdictions there was significant discussion of anti-corruption commissions through 2021, in the lead up to 2022 elections. At the Commonwealth level, these discussions centred on the lack of a Commonwealth integrity body, particularly in light of continuing integrity scandals. In South Australia, the ICAC saw an extreme narrowing of its jurisdiction and powers in 2021 that was heavily criticised by experts. However, the extent to which these discussions influenced the electoral discourse differed dramatically.
This post will look at the different nature of the debates in each jurisdiction, and consider the effect of them on the 2022 elections.
The Elections of 2022
South Australia’s election was held on 19 March 2022. While Steven Marshall led the South Australian Liberal Party to victory in 2018 after four terms of Labor government, he suffered a landslide defeat in 2022 to Peter Malinauskas’ Labor Party.
The federal election was held on 21 May 2022. Scott Morrison’s Liberal-National Coalition was unsuccessful in seeking a fourth term, with the Australian Labor Party instead forming government (albeit both major parties saw a decline in primary vote).
These two jurisdictions have seen significant attention devoted to their respective ICACs (or lack thereof) throughout 2021. However, the developments in anti-corruption reform in 2021 have had varying levels of importance and effect on the respective 2022 elections.
The need for a federal anti-corruption body dominated the pre-federal election discussion, and was a focus of the policy platforms of most parties and candidates. Indeed, as discussed in detail below, those candidates committed to strengthening public integrity fared exceptionally well. Anti-corruption reform was clearly an important federal election issue. In contrast, the South Australian anti-corruption reforms were ignored by almost all parties and candidates resulting in effectively no difference in policy between the major parties. Nor was this an issue with great impact on voters where pro-integrity candidates had little success; issues of anti-corruption had a negligible effect on the South Australian election.
South Australia ICAC in 2022
On 7 October 2021, the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 (SA) (ICAC Amendment Act) entered into force.
The ICAC Amendment Act enjoyed unanimous support amongst all political parties and MPs, passing through both houses of the South Australian Parliament unopposed. The ICAC Amendment Act introduced a number of reforms, most of which were recommended by the Legislative Council’s Crime and Public Integrity Policy Committee (CPIPC).
The changes to the ICAC included:
organisation and jurisdictional changes, such as the removal of the ICAC’s ability to investigate matters of maladministration and misconduct in public administration (with the SA Ombudsman now having sole responsibility for those matters); and
definitional changes, such as ‘corruption in public administration’ no longer encompassing all criminal offences, and ‘misconduct in public administration’ now limited to ‘intentional and serious contravention of a code of conduct by a public officer’, whilst it previously included any contravention of a code and any other misconduct.
These changes have resulted in a number of concerning implications.
It is now exceedingly difficult to establish misconduct in public administration due to the new thresholds of ‘intentional’ and ‘serious’. The only previous ministerial misconduct finding (against Stephan Knoll in early 2021) would have likely fallen short of this threshold.
Indeed this is almost a certainty, seeing as the Ombudsman expressly dealt with these criteria in its investigation report stating ‘There is no evidence before me that the Minister’s failure to act in accordance with the Cemeteries Act was intentional. … the misconduct ought not be characterised as “serious”’.
There is also now an inability of ICAC to investigate all offences under SA’s criminal law legislation. This has the effect of preventing investigations such as the 2020 travel allowances saga – which saw charges laid against an MP.
A briefing paper authorised by the Centre for Public Integrity (CPI) (being a ‘collaboration of former judges and integrity experts’) compared the changes in the ICAC Amendment Bill as against the CPIPC Report recommendations. It concluded that ‘many of the amendments appear to be without a basis in the CPIPC Report’. For example, there are no corresponding recommendations for the abolition of ICAC’s power to refer a matter to a prosecution authority, and the abolition of ICAC’s own-initiative investigation power.
Further, the CPI argued that the legislation may have ‘a chilling effect on the ability of the relevant authorities to pursue issues of corruption and misconduct in South Australia’.
Notwithstanding the basis and merit of these reforms, the strange urgency and theatre of the reform attracted scrutiny by some commentators – in particular, the immense speed at which the Bill passed South Australian Parliament. Within 24 hours of being introduced as a private member’s bill by SA Best’s Frank Pangallo, the ICAC Amendment Bill was enacted ‘without a single opposing vote or meaningful debate.’
SA ICAC in 2022
In the 2022 South Australian election campaign, no major party highlighted the 2021 ICAC reforms – or public integrity generally – as a key election policy. The electoral websites of the SA Liberal Party, the SA Labor Party, and SA-Best (the third highest-polling party in the State’s 2018 election) were (and are) entirely devoid of such references.
The SA Greens make no mention of corruption or public integrity on their ‘policies’ webpage but do have a webpage dedicated to ‘Integrity in Politics’. However, this page makes no reference to the SA ICAC or the recent reforms, nor does it identify any need to strengthen SA’s anti-corruption laws.
In September 2021, shortly after the ICAC reforms, the SA Greens published a media release, acknowledging the ‘concerns’ held by members and supporters about the changes, and explaining ‘why the Greens supported them’. The release reassured supporters that that ‘the ICAC has not been gutted’ and that the Greens MPs were confident they voted appropriately.
This lack of electoral attention is not surprising, considering that each party and each MP voted unanimously in support of the SA ICAC reforms outlined earlier. The SA ICAC was simply not in South Australia’s election discourse.
Former SA Director of Public Prosecutions, Stephen Pallaras QC, formed his own party ‘Real Change SA’ and contested the 2022 SA election. Mr Pallaras has been vocal in his criticism of the SA ICAC amendments and the unanimous support it enjoyed amongst MPs. His party’s policy platform highlighted political accountability and responsibility and contended that ‘having politicians adjudicating on whether their fellow politicians have breached conduct rules is “Caesar judging Caesar”’. His strong stance should have come as no surprise given that upon the passing of the ICAC Amendment Act, Mr Pallaras was highly critical both of the reforms and the MPs who voted for it.
In the lead up to the election in February 2022, Mr Pallaras again referenced the reforms, labelling the passing of the ICAC Amendment Act as ‘disgraceful conduct of every one of our parliamentarians’.
Whilst Mr Pallaras has berated ‘SA’s entire parliament hiding from scrutiny by the ICAC’, he called out the SA Greens in particular, attacking the assertions in the Greens’ media release:
You will never read a more pathetic set of lame excuses for failing to have the course to stand up to what every member of the public can see is a self-serving and rear-end covering piece of legislation.
Barring extraordinary success from Mr Pallaras, it was difficult to see how the ICAC reforms would impact the election. However, Mr Pallaras obtained only 9,417 votes in the Legislative Council (0.9%) and failed to win a seat in the South Australian Parliament.
In 2022 we may see the new-look SA ICAC in action (allowing us to make a proper assessment of its new role and powers). However, even that may prove to be wishful thinking in light of the diminished ability for investigations to occur.
To date, the ICAC has not publicised any new corruption investigations or prosecutions. It has instead exercised its statutory ability to ‘evaluate the practices, policies and procedures of inquiry agencies and public authorities’, in commencing evaluations of Super SA, TAFE SA, and the Central Adelaide Local Health Network, since the October 2021 reforms. Following an evaluation, the ICAC may table a report before Parliament, but containing only non-binding recommendations.
Only five other evaluations have been conducted by the ICAC since 2014, with this increased rate of evaluations potentially demonstrating a resort to the ICAC’s last remaining own-initiative power.
Commonwealth CIC in 2021
According to former Prime Minister Scott Morrison, the Coalition government began considering options for a national anti-corruption body in January 2018.
Almost three years later, in November 2020, the federal government released a ‘consultation draft’ of its proposed Integrity Commission legislation, the Commonwealth Integrity Commission Bill 2020 (Cth) (CIC Bill). The consultation process, including invitation of public submissions and a series of roundtables, occurred from November 2020 until March 2021. 333 submissions were received.
The CPI subsequently analysed all of the published public submissions, finding ‘virtual unanimity’ regarding the deficiencies in the CIC Bill, and stated that the Bill required substantial amendment if the Coalition government wished to maintain credibility.
In particular, the CPI identified six key features of the CIC Bill which attracted significant scrutiny:
the two separate divisions of the CIC, each with substantially different powers
the narrow definition of ‘corrupt conduct’, requiring a listed criminal offence to have been committed
the limited ability for the CIC to undertake own-motion investigations, and inability to investigate public complaints (including whistleblower reports)
the inability of the CIC to investigate without holding ‘reasonable suspicion’ of corruption
the inability to hold public hearings; and
the inability to report publicly.
In a strong statement, the CPI also titled its briefing note ‘A sham designed to hide corruption’. The CPI’s chair, Anthony Whealy QC, criticised the proposed legislation, stating that:
It’s better to have no integrity commission than one that is totally ineffective … To have one that pays lip service to integrity, but prevents the investigation of corrupt conduct, is a complete failure. It’s a farce, really.
The National Integrity Committee’s submission stated that:
… this model will rightly be seen by the community as a sham, and as a deliberate political diversion designed to shield the public sector, and in particular politicians and their staff, from proper scrutiny and accountability. It will bring the government into justified contempt and harm Australia‘s reputation. Our stocks in the integrity field are presently low and this proposal will further diminish them, and significantly so.
This is echoed in Transparency International Australia’s submission, which identified ‘significant and fundamental’ flaws, requiring ‘significant and substantial amendments’ to render it effective and credible.
Professor Tim Prenzler, member of Transparency International’s Network of Experts, submitted that:
… the proposed model is seriously deficient in its capacity to prevent, detect and sanction the full range of corrupt conduct. In the main, the proposal looks like an attempt to create the appearance of accountability without the substance, with the purpose of protecting politicians and public servants engaged in common forms of corruption – broadly understood. The model essentially perpetuates the current failed system of self-regulation.
Professor Prenzler’s criticism was more reserved that the anonymous author of submission 6, who exclaimed that ‘The “commonwealth integrity commission” is a joke’. Expressing a similar sentiment, anonymous submission 137 concluded that:
If a central African despot from the 1970s-80s was looking for a legal way to justify and protect his corrupt actions, he could do far worse than start with Christian Porter’s draft CIC Bill!
Criticism of the government’s failure to deliver on this election promise with an effective model has also come from within the Coalition’s own ranks. Tasmanian Liberal MP Bridget Archer crossed the floor in November 2021 to support a federal integrity commission bill introduced by independent MP Helen Haines. Ms Archer stated this was a ‘difficult decision’ but a necessary one, in light of the Coalition government’s ‘inertia’ on the issue.
The CPI has conducted a comparative analysis of state and territory integrity commissions, as well as the federal government’s proposed CIC. While the NSW ICAC and the Queensland CCC are the strongest and most effective, the SA ICAC (as reformed) and the proposed federal CIC are the weakest and least effective.
Commonwealth CIC in 2022
The failure of the federal government to enact anti-corruption legislation was undoubtedly on the 2022 electoral agenda.
A uCommunications poll from November 2021 found that 85 percent of voters supported a national anti-corruption body, as well as 74 percent of surveyed Coalition voters. A Guardian Essential Poll from November 2020 mirrored these numbers, with 81 percent of surveyed voters approving an anti-corruption body, as well as 88 percent of surveyed Coalition voters.
A SMH editorial from October 2021 warned that the Labor Party’s campaign had focused on a strong anti-corruption body, and that ‘the Coalition ignores the will of the people on this matter at its own peril.’ Another editorial, in the Canberra Times in November 2021, exclaimed that, if the Coalition uses COVID-19 as an excuse for not establishing an anti-corruption body, ‘it can expect to be punished at the ballot box in 2022.’
In February 2022, Stephen Charles of the CPI also categorised a federal ICAC as an important consideration on the minds of voters, noting:
This must be an important election issue because the Coalition is now facing very poor polling … The community must be alert to ensure that whichever party is elected honours the electoral promise to establish an effective and strong commission. The Coalition has broken its promise to establish a commission. If elected, Labor must be held to its firm commitment.
Professor Brown comments during the federal election campaign noted that ‘the focus on whether government – and which party – can be trusted to govern openly and honestly for the public good is looming larger than at any time in living memory’, with ‘Healthy political competition on integrity issues’ being ‘long overdue’.
Professor Brown also warned that the issue of a federal integrity commission ‘was likely to play out in the upcoming federal election’.
This would appear due to, not simply a broken electoral promise, but the raft of federal corruption scandals uncovered throughout 2021 and 2022.
These integrity concerns are not baseless. Dr Catherine Williams (Research Director at the CPI) has recently written on this Blog of the need for reforming the guidelines applicable to Commonwealth grants programs. Dr Williams notes that the Australian National Audit Office has made a series of findings of maladministration in respect of Commonwealth grant programs – indicating a clear need for greater transparency and accountability.
The federal election certainly contained significant opportunity, no matter which party was to be successful. Although Labor governments have, in the years from 2012 to 2018, established anti-corruption commissions in Victoria, WA, Tasmania, SA, NT and ACT, it has been pointed out that Coalition governments actually led the way in establishing anti-corruption bodies. The NSW Coalition established their ICAC in 1988 and the Queensland National party committed to establishment of the Crime & Corruption Commission’s predecessor body in the late 1980s (albeit both governments were faced with significant corruption scandals at the time).
Unlike the South Australian election, the federal election has presented a significant opportunity for progress to be made on public integrity, with the result of the election likely to have an enormous impact on the federal corruption landscape in 2022.
For Professor Brown, the election was timely and allowed ‘both major parties to put teeth into their commitments to bolster public trust and finally pick up the pace of reform’.
As it turned out, this opportunity was welcomed by voters, who extended an invitation to candidates who were committed to strengthening public integrity. The ‘teal independents’ and the Greens enjoyed enormous success, as did David Pocock (incoming ACT Senator), with incumbent independent MPs Zali Steggall and Helen Haines also re-elected. Much of the post-election commentary has focused on the evident increase in public sentiment for government accountability and a strong federal ICAC.
Tellingly, each of the abovementioned independents have expressed support for Dr Haines’ bill to introduce a federal ICAC. Greens Senator for Queensland, Larissa Waters, has introduced a similar bill.
The Coalition’s policy position on public integrity provided a stark contrast, and was exemplified by Scott Morrison suggesting that the NSW ICAC is a ‘kangaroo court’, and the continued insistence on the merits of the CIC.
The CPI comparative analysis referenced above graded Dr Haines’ and Ms Waters’ respective bills highly – on par with the NSW and Queensland commissions.
The Labor Party’s proposal for a ‘National Anti-Corruption Commission’ was released prior to the election and is contained within a seven-point plan. It has drawn support from Anthony Whealy QC and Professor A J Brown – though it has been conceded that the plan does currently lack detail. Due to these unknowns, the CPI has not ranked the proposal as highly as Dr Haines’ or Ms Waters’.
Conclusions
The contrasting experiences in these two jurisdictions shows the significant impact and effect of having certain policies and positions introduced into the political and electoral agenda. It highlights the almost unparalleled capacity of politicians and political parties to influence the development of policy, compared to external voices. Perhaps more tellingly, it presents a warning as to the inability of external and independent voices – even those who are well-qualified experts and stakeholders – to influence policy and electoral debate without the benefit of a strong political platform.
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Ryan Feuerherdt is a lawyer at MinterEllison in Adelaide, practising in administrative, local government, planning and environment law.
Suggested citation: Ryan Feuerherdt, ‘Anti-corruption bodies in 2021 and their impact on the 2022 elections’ on AUSPUBLAW (8 June 2022) <https://www.auspublaw.org/blog/2022/06/anti-corruption-bodies-in-2021-and-their-impact-on-the-2022-elections>