By David Crowe
The federal corruption watchdog will be given the power to investigate anyone who tries to induce public officials to engage in dishonest conduct, widening its scope to capture “third parties” in the pivotal reform to improve integrity in government.
The new commission will also be able to probe schemes that allow federal ministers to hand out public funds in discretionary grants, subjecting the “pork barrelling” programs to greater scrutiny when the actions raise concerns about serious or systemic corruption.
Attorney-General Mark Dreyfus says it will be up to the commission to decide what matters it investigates.Credit: James Brickwood
But the government is heading for a dispute in parliament over the scale of the new powers after experts said the commission should also be able to investigate business figures, lobbyists, family members and other third parties who engage in serious deception of public officials.
Former NSW Supreme Court judge Anthony Whealy, KC, the chair of the Centre for Public Integrity, welcomed the government move but said the federal bill should match NSW and Victorian laws that expose third parties to investigation if they mislead officials who are not corrupt.
In a key step to setting up the commission next year, Attorney-General Mark Dreyfus cleared the draft plan through a Labor caucus committee on Monday night before taking it to a full caucus meeting on Tuesday in the hope of passing legislation by the end of this year.
Integrity campaigners and independent MPs have urged the government to ensure the agency, to be known as the national anti-corruption commission, or NACC, will not only be able to investigate politicians and public servants but also those who try to bribe them or encourage them to engage in corruption.
“In relation to third parties, the commission will have broad powers to investigate allegations of serious or systemic corruption of or by a public official,” Dreyfus told parliament after independent MP Zoe Daniel asked about the scope of the powers.
“The commission will be able to investigate a corruption issue that could involve serious or systemic conduct by any person that could adversely affect the honesty or impartiality of a public official’s conduct.”
A key element will be to ensure the new power applies only to “serious or systemic” conduct, so it will be up to the commission’s leaders to determine if the conduct reaches that threshold.
In revealing key elements of his plan, Dreyfus clears the way for a vote on a crucial Labor election promise almost four years after former prime minister Scott Morrison vowed to set up a national integrity commission, only to disappoint advocates by never putting the bill to parliament.
“In relation to pork barrelling decisions, the allocation of public funds should be made, of course, in the public interest,” Dreyfus told parliament.
“The government will not be instructing the commission on what particular matters it can and cannot investigate. It will be up to the commission to decide what matters it investigates.
“To be clear, if the commission considers that the administration of a particular discretionary grants program gives rise to a serious or systemic corruption issue, then the commissioner will have the ability to investigate that issue.”
While the issue has been debated for months, Dreyfus has avoided a public declaration on third parties or pork barrelling while seeking support from the Greens and crossbenchers, while at the same time Opposition Leader Peter Dutton said the Coalition might vote for the bill.
Daniel, the member for Goldstein in Melbourne, said the Attorney-General’s answer was a “good sign” but that the next step was to ensure the reform had protections for whistleblowers, a guarantee on funding for the commission and proper parliamentary oversight.
As establishing some form of integrity commission now has cross-party support, the government may gain an overwhelming majority for the bill in parliament, removing the potential political advantage in passing the bill with votes from the crossbench and isolating the Coalition in order to portray Dutton as weak on corruption.
Most state commissions can investigate third parties as well as public officials they suspect of corruption but debates have flared over the powers after the High Court found in favour of barrister Margaret Cunneen when she challenged the NSW Independent Commission Against Corruption.
NSW and Victorian law now allows the anti-corruption commissions to investigate third parties who impair public confidence in public administration, citing examples such as collusive tendering, fraud or dishonestly gaining the payment of public funds.
Whealy praised the “broad and effective” definition of corruption Dreyfus revealed on Monday but he said wrongdoing could occur when third parties engaged in serious deception of public officials even if the officials themselves did not do anything corrupt.
Accountability Round Table director Fiona McLeod, AC KC, said a key element in the statement from Dreyfus on Monday was the requirement for the conduct to be “serious or systemic” to warrant an investigation.
Another member of the Centre for Public Integrity, former Victorian Court of Appeal judge Stephen Charles, AO KC, welcomed the latest move from Dreyfus despite the questions over deceptive conduct by third parties.
“It’s a triumph to have got it ready to go into parliament only four months after the election,” he said.
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