Whenever new powers are created or existing powers extended, it will inevitably attract those who would misuse or abuse that power for their own benefit. The various risks should be identified, mitigated and managed. While a National Integrity System provides sophisticated and multi-layered forms of risk management, it is useful to consider the particular risks that are generated by various powers at the point of their creation. Those who draft and scrutinize proposed laws should take what Oliver Wendell Holmes called the ‘bad man’s’ view[i] of that law and consider how ‘bad men’ might abuse the powers created by those laws to their benefit (or to the benefit of an organisation of which they are a member or have a public or political interest). There are well known risks of the abuse where legislation gives ministers or senior officials broad discretion in financial grants, the awarding of contracts, the granting of licenses and permits. There are also long standing concerns about discretion and political influence in law enforcement decisions (from raids to prosecutions). However, we should recognize that the corrupt can be innovative too.

Parliament should scrutinise draft bills carefully to determine whether a bill contains any provisions (especially those that grant powers) that might provide an avenue or opportunity for corrupt activity or other abuses of power. This function could be undertaken by the Senate Standing Committee for the Scrutiny of Bills (or a new committee overseeing the CIC). New terms of reference could be added to the relevant Committee and that Committee should seek input from integrity agencies such as the ANAO and the CIC (especially the CIC has, a research function – as we believe it should.)

[i]  “The Path of the Law“, 10 Harvard Law Review 457 (1897)

Recommendation 10

Assessment of Integrity Risks: There should be parliamentary procedure for assessment of the risk that propose legislated powers may be abused and recommend the best means for avoiding or mitigating them (with inputs from the CIC).

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