AN AMBITIOUS NATIONAL INTEGRITY FRAMEWORK

Open Government Partnership Australia is developing a National Action Plan. The current Draft Plan  (as a subset of the commitment in theme 4, to Integrity in the public sector) now includes a commitment to a National Integrity Framework.

Its “Ambition” reads very much as status quo;

Ambition
To aim to improve Australia’s score on Transparency International Corruption Perception Index.

To regularly review the jurisdiction and capabilities of ACLEI and FACC, and extend these on an as-needs basis.

To consult closely with industry, non-government organisations and the public to ensure that our law, policies and frameworks for responding to corruption are effective, including through holding the first government business roundtable on corruption in 2017. We will also consult publicly on the implementation of recommendations from the Statutory Review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated Rules and Regulations.

To ensure that our laws applying to the bribery of foreign public officials facilitate effective prosecution.

To assess whether a deferred prosecution agreement scheme would facilitate more effective and efficient responses to bribery and corporate corruption by encouraging companies to self-report.”

This commitment however is no where near as ambitious as required by the International OGP Articles of Governance, which state;

“Action plans should then set out governments’ OGP commitments, which stretch government practice beyond its current baseline with respect to the relevant grand challenge. These commitments may build on existing efforts, identify new steps to complete ongoing reforms, or initiate action in an entirely new area. Commitments in country action plans should be ambitious in nature. An ambitious commitment is defined as one that, once completed, will show a demonstrable advancement from action plan to action plan in the grand challenge areas proposed by OGP through openness, transparency, civic participation, and accountability.” (Addendum B. OGP Country Commitments. P 17)

Our ART submission on this matter sets out in detail how this ambition might be improved. We argue the present Draft NAP, “describes but ignores,  the complexity, inefficiency and serious inadequacy of the present “multi-agency” system.”

Reproduced in full below.


OGP Draft National Action Plan – Commitment 4. 2

                   The National Integrity Framework.

          Submission of the Accountability Round table.

 

Progress since the First Draft of the NAP .

The proposed NAP has advanced in scope and substance considerably since the initial draft was published. At that stage the critical Grand Challenge2 – “Increasing Public Integrity” –was not included. That Grand Challenge includes  “measures that address corruption and public ethics”

In the present Draft NAP, Grand Challenge 2 , as the grand challenge referred to as relevant to commitment 4.2 and a number of other commitments.

In assessing what is being proposed it is necessary to identify what is required and expected of nations participating in the Open Government Partnership (OGP), in particular in addressing corruption.

Addressing corruption – what is expected of participating nations?

There are several relevant statements in the OGP Articles of Governance[1]. In particular;

  • Fight Corruption”. The  Statement of Objectives (p2), states that the OGP  “aims to secure concrete commitments from governments to their citizenry to … fight corruption …..”
  • “Ambitious commitments”The list of “expectations of OGP participating governments” (p- 3 item 2) states

“Make concrete commitments, as part of a country action plan, that are ambitious and go beyond a country’s current practice”.

And “ambitious commitment” is defined as –

“one that, once completed, will show a demonstrable advancement from action plan to action plan in the grand challenge areas proposed by OGP through openness, transparency, civic participation and accountability” (p17).

Also relevant are the “core open government principles” (p 18), particularly the following

“Public Accountability: Rules, regulations and mechanisms in place call upon government actors to justify their actions, act upon criticisms or requirements made of them, and accept responsibility for failure to perform with respect to laws or commitments”

In Addendum D of the Articles, the commitments of members of the Open Government partnership are spelt out in detail.  They include (pp20 – 22)

  • We accept responsibility for seizing this moment to strengthen our commitments to ….”Fight corruption ……..” (P 20)
  • Implement the highest standards of professional integrity throughout our administrations” (p 21). That is developed in the paragraph that follows starting with: ““Accountable government requires high ethical standards and codes of conduct for public officials. We commit to having robust anticorruption policies, mechanisms and practices ensuring transparency in the management of public finances and government purchasing, and strengthening the rule of law “

and later

“We commit to increasing deterrents against bribery and other forms of corruption in the public and private sectors, as well as to sharing information and expertise”

It concludes with a number of challenges and commitments including (P 22)

“We pledge to lead by example and contribute to advancing open government in other countries by sharing best practices and expertise and by undertaking the commitments expressed in this declaration on a non-binding, voluntary basis.”

Does the proposal address these requirements.?

Regrettably the present proposal does not do so. Rather it fails the requirements.

What is proposed does not “fight corruption”. It is not “ambitious” for it does not  “go beyond a country’s current practice”, and does not “show a demonstrable advancement”. Further, it does not “implement the highest standards of professional integrity throughout our administrations”.

What is proposed falls well short of the commitment to have “robust anticorruption policies, mechanisms and practices”. Further, while it will share “information and expertise” it will not increase “deterrence against bribery and other forms of corruption in the public and private sectors”. It also will prevent Australia leading by example.

What is proposed? (p 54 ff)

The draft NAP proposes a continuation of the status quo of the “ multi-faceted , multi-agency approach” with a general promise to “strengthen our National anti-corruption and integrity framework “ and “strengthen our ability to prevent, detect and respond to bribery and corruption”.

So the Australian Commission for Law Enforcement Integrity (ACLEI)  will continue to aim to

  • “understand corruption and prevent it” , (p 55) and
  • “Identify and make recommendations for changes to laws and practices that may be contributing to corrupt practices or preventing early detection”. (Ibid)

It will “collect and share information to strengthen anticorruption arrangement in Australia and abroad” – including to agencies such as the police and “other integrity agencies” (ibid).

Australia will continue to rely upon the AFP Fraud and Anti-Corruption Centre (FACC) (established in 2014 within the AFP)  “to assess, prioritise and respond to serious ..fraud and corruption matters.”  And  “draw (s) on the collective knowledge of agencies to provide sound contemporary advice in relation to potential for threats relevant to new government funding initiatives prior to their implementation”.  We note that “an additional $15 million” has been provided to enhance its capacity to detect and investigate corruption, bribery and serious economic crime” (ibid) .

It is also acknowledges that coverage of fraud and corruption across Australian government agencies has still not been provided when it states that “between the FACC and ACLEI, there is significant coverage of fraud and corruption across Australian Government Agencies, with a particular focus on areas of high-corruption risk”.  (P 56)

After referring to the May 2016 report of the ACLEI Parliamentary Committee, and noting

  • the many public submissions that called for coverage of the “ entire public sector”, and
  • the Committee recommendation that the jurisdiction of ACLEI be extended to the entire Department of Agriculture and water resources and that the feasibility of including the Australian taxation office within ACLEI’s jurisdiction be considered,

it states – “the government is considering the Report’s recommendations”. Ibid)

Reference is also made to the government’s exploration of a new response – effective deferred prosecution agreement schemes to help encourage companies to self-report criminal behaviour.

The proposal then goes on to identify various steps that government will take including close consultation to ensure the effectiveness of anticorruption “ law, policies and frameworks” and the Review of anti-money laundering and counter-terrorism financing and the foreign bribery laws . (p 57)

It then attempts to summarise the “Relevance” of Commitment 4.2 in the following passage (ibid)

“This commitment will advance the OGP values of access to information and public accountability by:

  • improving the effectiveness of our legal, regulatory and institutional framework; and
  • protecting the integrity and transparency of the execution of public policy and Management”

Assessment of the proposal?

In essence, the draft NAP proposes that the status quo continue while the government proposes to consider some peripheral options. At the same time, it describes but ignores,  the complexity, inefficiency and serious inadequacy of the present “multi-agency” system.

The intent of this Commitment is summed up in the “Ambition” section – (p 56) – in the following order;

  • “To aim to improve Australia’s score on Transparency International Corruption Perception Index.
  • To regularly review the jurisdiction and capabilities of ACLEI and FACC, and extends these on a needs basis.”

The background realities

We must be frank and acknowledge that for some time there has been strong opposition within our Commonwealth Government, elected and non-elected, to consider and address the realities that have been faced elsewhere in Australia. Those realities that have grown in seriousness over the last 30 to 40 years not only have been increasing the risk of serious corruption of all Australian governments but also the reality of it. There is no reason why that risk and reality[2] is not of equal if not greater concern at the Commonwealth level than the State-level, bearing in mind the far greater commercial significance of its decisions.

As was put in our Submission 31 to the ACLEI Committee (6)[3]

“there is no reason to assume that the corrupting influences that exist in Sydney, Melbourne or Perth do not operate in Canberra, where the Federal government each year purchases tens of millions of dollars of goods and services. In 2009 alone, the defence department sought more than $45 billion worth of tenders.” (See also appendix 1 and appendix 2 to Submission 31.)

We also remain of the view that the significant increases in the risks of corruption that have occurred in recent years make it necessary to establish an anti-corruption commission in Canberra.

“These include the government control of information, the ever-increasing need for funding of political campaigns, the methods employed by government and the failure to enact legislation to provide adequate controls and transparency, the commercialisation of government services and projects, the development of lobbying, the inadequacies of any attempt to control that activity and make it transparent in a timely manner, and the failure to stop or control the flow of ministers and their staff to the lobbying industry on retirement from their positions. Combined with these factors there is an increased risk of corruption resulting from the impact on major vested commercial interests of the significant changes that will be needed to address the problems posed by climate change and the exhaustion of natural resources, including energy, water and phosphate.” (submission 31 page 6)

Little wonder that we are seeing an ever increasing community concern to have the best systems in place to fight corruption. The Accountability Round Table has discussed and analysed the realities in detail in a number of submissions in recent years (see attached Submission 31 and the earlier submission attached to it).

It is our understanding that one of the reasons for the resistance of those in government, elected and non-elected, is the risk of possible unfair public allegations and exposure through the public enquiries that the best practice Anti-corruption bodies conduct. That can be significantly reduced to only necessary situations by appropriate confidentially requirements as has been provided in State systems. There is also concern that the best practice models used elsewhere make inroads into the privilege against self-incrimination in relation to people who are called upon to give evidence to the Anti—corruption bodies.  But, as with Royal Commissions, provision is made to prevent any evidence given as a result to be used in subsequent legal proceedings against the person who gives it. proceedings. There are also procedures available to have hearings take place in camera.  ¶

In considering those issues, we need to bear in mind that the concerns that are being raised are related to the rights and the privacy of a special group of people  – special because they have been entrusted by the people of Australia with power to govern them and very substantial sums with which to do so.

Until recently, in discussion of these matters, the discussion has overlooked this aspect and done so because the community has long forgotten a relevant and very significant ethical and legal principle that flows from our entrusting our elected and non-elected government offices with power over our lives and funds that we have supplied.

The principle is that they are ethically and legally obliged to put the public interest ahead of their own interests and other private interests.   As explained by Sir Gerard Brennan in the speech he made when presenting the ART integrity awards for the 43rd Parliament;

It has long been established legal principle that a member of Parliament holds “a fiduciary relation towards the public”  and “undertakes and has imposed upon him a public duty and a public trust”.  The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories.  The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee. 

 As Rich J said:
“Members of Parliament are donees of certain powers and discretions entrusted to them on behalf of the community, and they must be free to exercise these powers and discretions in the interests of the public unfettered by considerations of personal gain or profit”.

We have in place various mechanisms including questions in Parliament and Parliamentary Committees whereby our Public Trustees can be held to account and publicly.  A national Anti-corruption body will perform that same function but in circumstances where there are reasons to suspect that the Public Trustees’ obligations, as our fiduciaries, have been breached.

Applying the common law and ethical principle to this present enquiry, we submit that, the question to be asked is whether establishing such a body to cover the Commonwealth Government and its agencies will serve the public interest.  In considering that question, the issues that are sought to be raised against such a proposal also need to be tested by asking , and establishing, where the public interest lies.

What then should Commitment 4.2. be?

We submit, as we have previously that the jurisdiction of ACLEI should be extended to provide a single national anti-corruption and malpractice body with a jurisdiction giving it comprehensive coverage of the whole Commonwealth sector, including:

  • Ministers, Parliamentary Secretaries, Members of Parliament and their staff,
  • The Commonwealth Public Service,
  • Courts and tribunals,
  • Compliance, regulatory and law enforcement agencies,
  • Statutory corporations, companies in which government has an interest or on which government relies to provide services to the community or to meet statutory, or international treaty obligations, or which receive direct or indirect assistance from the government or its agencies.

Other consequential action will need to be taken.  It will be necessary to rename ACLEI to reflect the broadened jurisdiction.  It will also be necessary to review all related matters including:

  • relevant definitions (including the definitions of corruption and malpractice),
  • the adequacy of existing powers, including investigatory powers, and whether additional powers are required, and
  • the adequacy of the educative, research and policy functions.
  • the adequacy of the system for co-ordinating the work of all Commonwealth agencies involved in monitoring and investigating misconduct, – the resourcing needed to serve the comprehensive jurisdiction.

In conclusion, as was said in that earlier submission,

“The new Parliament has a unique opportunity to establish a comprehensive and effective national integrity system that would enable Australia to join New Zealand at the top of Transparency International’s integrity list”   

Taking this action will also enable Australia to finally honour its obligations under the United Nations Convention against Corruption (article 36) to ensure the existence of a body or bodies specialised in combating corruption through law enforcement, and able to carry out their functions effectively and without any undue influence.

As the ART previously submitted (Sub 31 p 3) Australia’s failures to honour its obligations under the UNCAC, and the OGP

“must severely damage our reputation as a safe and secure investment and trading partner. It also sends a very poor message to the whole financial world and must create real risks of higher interest rates and lower credit rating from the international ratings agencies”.

And it should enable us to achieve one of the proposed Ambitions stated in the draft NAP or improving improve Australia’s score on the Transparency International Corruption Percentage Index. The proposal put forward in the draft NAP will not achieve that.

A final matter

We wish to raise the topic of the lead agency for commitment 4.2

We submit that the Department of Prime Minister and Cabinet should be the lead agency, not just one of the Government group. The Attorney-General’s Department should remain involved as one of the government bodies.

We submit that this is warranted because of the overall importance of the content of commitment 4.2 not only for its implementation and performance but also for the   successful, corruption free implementation of all other commitments and their subsequent performance including the specific commitments for which the Department of Prime Minister and Cabinet is the lead agency (2.1, 2. 2, 3.3).  DPM and C is also the lead agency for Commitment 5.1 – “Delivery of Australia’s Open Government National Action Plan”) .

 

Accountability Round Table

The Hon. Tim Smith QC

18 November 2016


[1]  Open Government Partnership Articles of Governance.

[2] We rely on the analysis of the evidence contained in the attached Submission 31 and attachments one and 2 to that submission. (These can also be found at that link.)

[3] See Appendix A