Sun May 22

What has Labor promised on an integrity commission and can it deliver a federal ICAC by Christmas?

Written by Yee-Fui Ng, Associate Professor, Faculty of Law, Monash University

The election results are in and Labor has won enough seats to form government, either as a majority or with the support of independents. What will this mean for political integrity?

The main election promise ^[1] Labor has made on integrity is to establish what it says will be a “powerful, transparent and independent National Anti-Corruption Commission” (sometimes shortened to NACC).

So, what is Labor’s model for an anti-corruption commission?

Power for public hearings

Labor has proposed ^[3] a robust commission with strong powers, coupled with checks and balances to ensure it does not abuse its powers.

The National Anti-Corruption Commission will have broad jurisdiction to investigate serious and systemic corruption by Commonwealth ministers, public servants, ministerial advisers, statutory office holders, government agencies and MPs.

Crucially, it would have the power to conduct public hearings if it believes it’s in the public interest.

Labor’s model balances the seriousness of allegations with any unfair prejudice to a person’s reputation or unfair exposure of a person’s private life.

This is a proportionate model that enhances public trust through public hearings, but also takes into account legitimate concerns about damage to an individual’s reputation.

By contrast, the Coalition’s proposed model did not include the power for public hearings.

The National Anti-Corruption Commission will have the power to make findings of fact, including findings of corrupt conduct. It could refer matters involving criminality to law enforcement authorities.

Unlike the Coalition’s policy, the National Anti-Corruption Commission will also have retrospective powers ^[4] to investigate alleged misconduct from 15 years ago.

Labor’s National Anti-Corruption Commission can act in response to referrals, including from whistleblowers and public complaints, consistent with other integrity bodies.

By contrast, the Coalition’s model did not allow referrals from the public.

Importantly, the strong powers of the National Anti-Corruption Commission will be counterbalanced by external accountability mechanisms to “watch the watchdog” via parliament and the courts.

There would be oversight by a parliamentary joint committee. Its decisions would also be subject to judicial review, to ensure the body’s compliance with the law, due process and other standards.

Can Labor deliver by Christmas?

Labor has promised to pass legislation establishing the National Anti-Corruption Commission by the end of the year. Is this feasible?

There are still some aspects of Labor’s model that remain unclear, such as the budget that will be allocated to establish and run the body.

For the commission to be effective, it requires sufficient funding and staff to carry out its investigations.

Also, the full design of the National Anti-Corruption Commission has not been announced, such as how many commissioners or deputy commissioners it would have.

It is also unclear whether it would have a corruption prevention division, which is a pro-integrity function that monitors major corruption risks across all sectors.

These details would need to be worked through expediently to get a bill up by Christmas.

Labor has said ^[5] it will draw on a draft bill proposed ^[6] by independent MP Helen Haine in 2020. This may potentially expedite the drafting process.

Labor has said it will draw on a draft bill proposed by independent MP Helen Haine in 2020. AAP Image/Lukas Coch

The composition of the Senate will also be crucial to determine whether Labor can pass this bill, especially if the Coalition seeks to block it.

The electorate has spoken. The time is overdue to introduce a federal anti-corruption commission.

It is time for the new government to act – without delay. Australians deserve a robust system of accountability that will keep our politicians honest.