Charles Sampford, ART member, writes for the Financial Review, 27/08/2015 on the necessity for an entire integrity system.  http://www.afr.com/business/legal/permanent-integrity-review-needed-for-icac-20150826-gj8qn7


Permanent integrity review needed for ICAC

by Professor Charles Sampford

Independent commissions against corruption under various names and acronyms are frequently subject to ad hoc reviews which vary in breadth, quality and politicisation. Former High Court judges Ian Callinan and Murray Gleeson recently reviewed Queensland’s and NSW’s anti-corruption commissions. The Callinan review was widely criticised. The Gleeson review was a very good, legally-centred but not legally confined analysis of some of the key issues raised by the NSW ICAC.

But none of the recent review processes is likely to be as effective as a process recommended nearly three decades ago.

Lessons from Queensland

In 1988, premier Greiner sought to combat NSW corruption using the highly-regarded Hong Kong model of a single, very powerful Independent Commission Against Corruption enforcing a strong anti-corruption law. At the same time, Queensland’s Fitzgerald inquiry was developing a more extensive, intensive and systematic approach to reform. His proposal did include an ICAC-type body (the Criminal Justice Commission), but recognised two very important limitations. First, an ICAC’s broad powers could themselves be abused (for example, as a partisan battering ram against the opposition). Second, even the most powerful ICAC could not, by itself, eliminate corruption – let alone improve governance.

 Fitzgerald recommended a process of reform that has not been bettered in any other jurisdiction. Led by an independent Electoral and Administrative Review Commission and looking at Queensland governance as a whole, it produced an issues paper, held public seminars, received submissions and reported to a parliamentary committee which sought further advice and reported to Parliament. The bi-partisan method of appointment, the non-partisan nature of the commissioners, the range of experiences and disciplines of the commissioners, the overall quality of the work and the inclusiveness of the process meant that most proposals were accepted.

The commission also had the benefit of looking at Queensland governance as a whole, understanding the way existing institutions operated and how new ones might fit and interact.

The result was an integrated set of norms, laws and institutions that would promote integrity and reduce corruption. These goals were not entrusted to a single ICAC but a combination of state institutions and agencies (parliament and its committees, courts, police, DPP, CJC, ombudsman, auditor general) supported by ethical and legal norms.

Following work I did with EARC and the parliamentary committee two features seemed obvious: the primary goal was building public integrity (with combating corruption a necessary but insufficient corollary) and the strength of the system was not just due to the strength of the institutions but the way they interacted with each other (their ‘systemic’ quality) – supporting each other when they were fulfilling their functions and checking each other when they did not. I called it an ‘ethics regime’, which the OECD renamed an ‘ethics infrastructure’ and Transparency International (TI) later called a ‘national integrity system’.

 A lesson not learned

ICACs and equivalents are frequently subject to ad hoc reviews. None are likely to be as effective as the process recommended by Fitzgerald. He recommended that the commission be a permanent and enduring body, to recommend initial reforms then regularly review the various elements of the ‘integrity system’. The bi-partisan mode of appointment would have helped retain its legitimacy. As an enduring body it would develop expertise in the operation of the integrity system and its agencies – including strengths, weaknesses, gaps, overlaps and co-ordination problems – putting those issues in a broader context that seeks not only to root out corruption but build the integrity (and legitimacy) of the institutions some of us still cherish.

All governments should have a permanent non-partisan governance reform commission that would review institutions within their integrity system and integrity system as a whole – including reviews of powerful organisations like ICAC.

Professor Charles Sampford is director of the Institute for Ethics, Governance and Law at Griffith University. He will speak at the Law Society of NSW’s conference, Reflections on Corruption, in Sydney on Friday.