Corrupting influences: does Australia need a National Integrity Commissioner?

Now jailed former assistant director of the New South Wales Crime Commission Mark Standen is a key example of how corruption operates in Australia. AAP Image/Tracey Nearmy

The Australian Greens have proposed the introduction of a National Integrity Commission to provide an anti-corruption body operating at the federal level.

Earlier this week, Greens MP Adam Bandt announced the decision to bring forward legislation to create such a body, stating, “Anti-corruption bodies exist in most of the states but there is nothing at a Federal level, so action on an Integrity Commissioner is long overdue.”

The National Integrity Commissioner Bill 2010 would establish a national anti-corruption body charged with overseeing public officials and Commonwealth agencies, with powers based on the existing Law Enforcement Integrity Commissioner which currently covers the Australian Federal Police, Crime Commission and Customs.

The bill would broadly empower an National Integrity Commssioner to investigate alleged corrupt activity of “a minister, a parliamentarian, a former parliamentarian, a Commonwealth agency, an employee of a Commonwealth agency or a person employed under the Members of Parliament (Staff) Act 1984 or any other public official.”

How would it work?

The goal is laudable, and raises for discussion the important question of how best to design such an organisation, and the possible benefits and disadvantages that can come with different designs.

A consistent national approach is intuitively appealing, with practical advantages. A lack of integrated laws can be exploited to the advantage of corrupt officials or organised criminals.

For example, dealing with organisations that span the country is not made any simpler by having different laws on motorcycle gangs in different states of Australia.

Attempts to combat bikie gangs can be complicated by different state laws. AAP Image/Dean Lewins

And when one state creates tougher legislation (such as South Australia’s introduction of the Serious and Organised Crime (Control) Act 2008, there is an incentive for other states to follow suit, even if the legislation runs the risk of being difficult to enforce. In trying to deal with the crime of corruption, then, Australia might do well to develop a common national approach.

Overlapping jurisdictions

The appeal of such a body, however, will need to be tempered by considering the problematic questions surrounding its possible scope and powers, and the risk that the body might become corrupted by the very thing it is created to fight.

The nature of this problem can be observed in the context of arguments about the suitability and capability of organisations such Victoria’s Office of Police Integrity.

Consideration needs to be given to whether such a national body might ultimately replace the need for state-based commissions and, if not, how the possibly overlapping jurisdictions might interact. Even if the National Integrity Commission is tasked to investigate only those in federal authorities, and the state commissions are restricted to investigating individuals in state organisations, corrupt activity can easily cross such a theoretical distinction.

So even if clear jurisdictional boundaries are hammered out, in practice there is likely to be some overlap between investigations conducted by a national body and existing state organisations. In such cases there are likely to be problems similar to concerns about information sharing between state police forces and the Australian Federal Police when conducting sensitive investigations.

Playing politics

To the extent that any jurisdictional overlap requires the input of the states, reaching a consensus a national approach may be additionally complicated by the politics of state-federal relations.

The easiest way to explain the need for a national commission is to demonstrate the nature of the problem. But when the threat or incidence of corruption is mentioned, state governments have an incentive to reiterate their confidence in the mechanisms already in place in their state (and state opposition parties have an incentive to carp about those same mechanisms being inefficient). It’s called politics.

Witness Andrew McIntosh, a minister in the Victorian Baillieu Government, who while in opposition felt that the problem of police corruption in Victoria was serious enough to warrant major changes to the Office of Police Integrity. But in March of 2012, in response to criticism of the limited powers and scope of the Baillieu Government’s proposed Independent Broad-based Anti-corruption Commission (IBAC), Mcintosh responded that, “Unlike NSW, unlike Queensland, unlike WA, which did have a serious problem in relation to corruption… in this state we don’t have that particular problem.”

Major criminals like Carl Williams managed to corrupt police in Victoria, leading to establishment of bodies like the OPI. AAP/Julian Smith

Great power, great responsibility

Corruption is not just a persistent problem, it is one with a tendency to spread if left unchecked. This is just one reason why it was disappointing to hear McIntosh’s statement earlier this year.

Regardless of whether the problem of corruption in a state is considered serious or not, unless vigilantly kept in check it will grow. It can rapidly evolve from small-scale unrelated acts of misconduct, to minor cooperative acts of corruption, to large-scale systematic corrupt behaviour within an organisation.

As a result, there are many tough questions and few easy solutions when trying to create a new authority to oversee the problem. Corrupt activities tend to spread from public officials across institutional boundaries to involve private individuals.

This highlights one of the problems restricting the Victorian Office of Police Integrity’s investigations, for example; having to constrain the scope of investigations to police officers, excluding politicians or organised criminals.

Any discussion of a federal anti-corruption commission like that proposed by the Greens will need to carefully weigh how much power and scope to give such bodies.

Who watches the watchmen?

The question of how much power to give such bodies is not just a matter of their effectiveness in investigating the problem they are tasked with.

Elinor Ostrom, a political scientist with a Nobel prize in economics, distinguishes between “first order social dilemmas” - fundamental problems that require rules to solve them - and the “second order social dilemmas” - the problems involved with establishing the rules themselves.

The particularly nasty problem with the latter of these dilemmas is what political scientists and institutional theorists refer to as the “paradox of power”. The paradox is this: how can an organisation be granted sufficient powers to protect people from the threat at hand, while still being constrained from becoming a threat itself?

Legendary “Untouchable” Elliott Ness: the Hollywood template for an anti-corruption officer. United States Government

Put more simply - who will police the police? Consider Mark Standen, former Assistant Director of the NSW Crime Commission (a body with wide-ranging powers to investigate organised crime), and his conviction for his corrupt involvement in the planned importation of large quantities of pseudoephedrine (the very kind of criminal activity he was meant to police).

The creation of a higher standing authority cannot solve the paradox of power - only elevate it to the next level. A National Integrity Commission like that proposed by the Greens to watch over public officials and Commonwealth agencies will ultimately need someone to watch over it as well.

In trying to solve the paradox of power as it pertains to a body like the National Crime Commission (one of the bodies to be overseen by the NIC) by creating a new, encompassing investigative institution we must be careful not to fall victim to a kind of reverse matryoshka doll approach, where each collection of smaller bodies is swallowed up by an continuing series of larger ones.

The Australian Greens’ proposal will hopefully put on the table a discussion not only about the possible benefits of a national, unified corruption watchdog, but also the problems involved in ensuring it is neither toothless nor easily corrupted itself.

In planning a response to the slow-burning but ultimately persistent and serious problem of corruption, we would be well advised to remember that whatever form a national anti-corruption body might take, a new overarching authority should not be considered the end of the fight.

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