Anti-corruption body wastes time with a triviality

On the eve of its second birthday, the National Anti-Corruption Commission was able to celebrate by announcing its first finding of misconduct against a public official.

IllustrationCredit: Simon Letch

But do not get excited – it is pretty low-level stuff: a senior public servant (their name has been concealed) inappropriately placed her sister’s fiance into a job. This is pretty ordinary work, and not an especially spectacular start for Australia’s premier anti-corruption body. It is the kind of matter commonly dealt with by the Australian Public Service Commission, not an anti-corruption body. It really looks well beneath the role of the NACC.

There is real work to be done, but the NACC is distracted by dealing with comparative trivialities.

The first two years of the NACC have been a real disappointment. There is negative feel to it, as though the commission’s leadership team is unwilling to flex its muscles. Even the decision to conceal the names of those involved in this incident is puzzling – they did wrong, so why not expose them? The NACC emphasised that it regarded the matter as serious and pointed out that the principal miscreant was in a senior position. The evidence collected showed the breach was deliberate and flagrant. It was a misuse of public power, a misallocation of public money, and it meant that a person who deserved to get the job missed out. Yet the NACC seems to be more concerned to protect the wrongdoers than to expose the wrongdoing.

This is a dispiriting position to be adopted by the agency charged with overseeing transparency and accountability in the public sector. The public is denied transparency; those breaking the rules escape accountability.

We should not be surprised. Everything we have seen so far from the NACC suggests it is not up to the task of tackling serious corruption.

Its decision not even to open an investigation into the six persons referred to it by the Robo-debt royal commission was an early sign that something was not right. That decision, which was an awful error, needed to be corrected by Gail Furness SC, the statutory inspector of the commission. Furness’ report exposed that the NACC commissioner himself was unable to manage a basic conflict of interest – yet he is the person to whom public officials should turn to get guidance on their conflicts of interest.

That misjudgment by the commissioner led to a finding of “officer misconduct” on his part – so, ironically, the first finding of misconduct about the NACC was a finding against the NACC.

It is clear that those in control of the it misunderstand their jurisdiction. In evidence given to the parliamentary committee which oversees the NACC, deputy commissioner Rose explained that a major reason the NACC decided it would reject the royal commission referral was that it did not have the power to inflict a “punishment” or impose a “fine”. This is wrong. The NACC was designed in a way to comply with the fundamental constitutional principle that a non-judicial body cannot inflict punishments or impose fines.

The new National Anti-Corruption Commission has ushered in an era of ethical probity.Credit: Glen Le Lievre

And it has a practical effect – because the NACC can never inflict a punishment, if deputy commissioner Rose’s view prevails, then the NACC will never have anything to do.

The NACC needs to change. I have had first-hand experience of the way in which these organisations depend upon the leadership team if they are to be effective. The leadership needs to be positive and dynamic. Especially at a time when it is establishing itself and exploring its jurisdiction, the leadership needs to be bold and fearless.

Instead, the current leadership of the NACC is timid and negative. Among the papers it produced are comments by its commissioner expressing a reticence to make a decision because if the NACC made an adverse finding, it would be challenged in court. Well, that is true, but it is not a reason not to pursue the crooks corrupting our system. The leadership should be welcoming challenges and meeting them head on.

The NACC’s reputation has been dented. Maybe it can be retrieved. But it will require a more adventurous leadership.

Geoffrey Watson SC is a director at the Centre for Public Integrity