CHOICE membership

Commonwealth Integrity Commission

After much delay the first draft of the Commonwealth Integrity Commission legislation has been released here.

The background is that the federal parliament and public service activities do not have any kind of independent body to examine the possibility of corruption. At present there are Royal Commissions that are set up with the scope defined by the government in power. There is the Auditor General who may be independent but is limited in power and can be largely ignored. What is lacking is something like the Commissions (of various names) that the States have with power and resources to investigate widely at its own discretion.

You can find the draft itself through the above link. There is commentary on it from a SC Geoffrey Watson here and from a professor of law and policy A J Brown here.

A quick summary of the most telling remarks:

  • Very few people can refer material for consideration. The Attorney General, federal employees and contractors, and the public are all excluded.
  • The grounds for commencing investigation are extremely narrow, in effect it has to be bleeding obvious. Matters like the Obeid affair would never have been reported or investigated.
  • Almost everything up to the point of referral for prosecution is secret and there are very limited public hearings.
  • Historical cases are forbidden, so the smell over the Leppington land purchase can never be traced.
  • Proposed funding is not great but a start at least.
  • As it is proposed, the CIC’s full Royal Commission powers would only extend to about 20% of the federal public sector.

Opening this topic may be seen as too political but I am taking as precedent the threads on several Royal Commissions that are alive and well.

Also this is not an attack on any particular party, the present opposition failed to implement such a thing when in power. It is time, in my view, that all parties got involved and created an Act that would be effective at addressing all issues of corruption at the federal level not just those that the government of the day (of whatever party) find it convenient to refer to a RC.

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I think the need for a fully independent Federal ICAC type body is well and truly here, however this watered down excuse for one is a travesty, and possibly worse, it will allow the abuse of our Federal Politics to continue unabated and now with a seeming seal of approval as the cases will not be investigated because there is no “need”/requirement to and the Body has no authority or it hasn’t been referred.

The latest claims about the bullying and so on that have come out of Canberra and the real inability of those tasked (eg Dept of Finance) with handling those complaints to actually take action I think reinforces the need for the Federal ICAC type body with real powers to be enacted. However what we will get is probably a lame duck at best, I’m sure we can all imagine what could/may be worse. No one else in Society seems to be given such lax control over their behaviour as do those who operate at the level our politicians do. This behaviour is often only controlled/policed by themselves which can lead to less than appropriate outcomes.

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Some of the more excitable members of the body politic have demanded that the (now former) CEO of Australia Post be referred to (an as yet non-existent) Federal ICAC over the “Cartier watches affair”.

To me this is very informative, on two counts.

  1. My understanding is that Australia Post would be within the scope of the Federal ICAC but, if anything, this therefore concerns me as to what the reach of this body would be and whether it is or will be unacceptably great i.e. yet another body with powers of compulsion and powers of intrusion. In other words, I don’t think Australia Post should even be within the scope.

  2. No discussion of a Federal ICAC should commence without a definition of “corruption”. Was the handing out of the 4 Cartier watches corrupt conduct? What do you mean by “corruption”? What does the draft legislation actually say? Is it a satisfactory definition? As a supplementary question: Is corrupt conduct always criminal conduct? Is corrupt conduct never criminal conduct?

The point of the second question is because, again, the more excitable members of the body politic seem to equate “anything I disagree with” and “corrupt”.

(I took on board your observation that no “historical” cases will be allowed. So the AP CEO case is only a thought experiment. However my reading is that “historical” cases will be allowed so “citation needed”.)

The politics of it may be that the benefit to the Opposition is in the government’s not passing the legislation - a stick to beat the government with - but once the legislation is passed, it applies to the Opposition as well and their time in government too will come soon enough. So the interests of the Opposition may well be in a relatively tame Federal ICAC i.e. in the theatrics rather than the mechanics.

So the politics of it may be that the legislation passes more or less ‘as is’.

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Just to bring that point out a bit more, there are two scenarios.

  1. The power to compel testimony from persons other than the person who is suspected of corrupt conduct.
  2. The power to compel testimony from the person who is suspected of corrupt conduct.

I am not keen on either but the second is most offensive, as it removes the legal principle of the right to silence and as it potentially removes the need for the prosecution to build its case with evidence that it can find.

I do not support either, as a matter of principle, but of course we do not have the benefit of the Fifth Amendment.

The likelihood of the current proposal is a succession of “I do not recalls” - as that is the only way of navigating the contradiction between the proposed legislation and the right to avoid compelled speech.

I don’t believe that a Federal ICAC would be fatally undermined if it could not compel testimony. It would just have to build its case with the evidence that it can find.

Having been through one of the state corruption commissions, I support that there are no public hearings as they can (or often) used for political purposes to tarnish the name of those who have misconduct allegations made against them.

What happens is unfounded (frivolous/vexatious) allegations are made and these allegations as well as part of the hearing make the 24 hour news cycle and viewers see the allegations and the hearing and assume that there are some grounds or basis to the allegation (hence it is true). What can happen is the allegation is dismissed, but the damage has already been done to the individual in question. Mud sticks and it is very difficult to wash off.

However, the findings of any allegations should be made public when a determination is made, as this has all the information and grounds for the determination. The media will be interested in the allegations which are upheld, and not those dismissed and that should be the case.

Having publicised public hearings and broadcast of allegations before a determination only results in the anti-corruption commission activities becoming political or frivolous/vexatious…and aim to cause as much damage to an individuals reputation rather than prove misconduct or corruption.

Any corruption commission also needs to be independent and have the teeth to be able to investigate any allegation appropriately and thoroughly, with assistance of anyone who may have information useful to the commissions investigations.

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I am accepting the word of geoffrey Watson SC linked above. I cannot point to the Section of the draft it is 400 pages altogether and I haven’t read all of it. That is why we have lawyers to tell us the key points.

Surely there is plenty of scope for corruption there. People can demand whatever they like it doesn’t mean the ex CEO would have had a case to answer and I don’t see how the way she was treated this time says anything about the scope of such a commission. Why should any part of the public service or any QUANGO be exempt?

And it does not. The definition is in the exposure draft.

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This seems to be about politics more than anything else. So what is this discussion doing on Choice Community?

Often political matters do crop up on this Community. As the effects of political decisions can and do have ramifications for consumers and as CHOICE does lobby for changes in legislation, this political discussion is often at the least tolerated and sometimes encouraged depending on what is posted here. While some discussion is allowed if it becomes too heated, is too wide of the mark, or is seen as not in the CHOICE stable of issues it may be closed, moved to another section of the site which allows more diverse discussion (and is not so public), or removed.

At the moment I think that the discussion has been civil, of interest to many members and so CHOICE may continue to allow it to be public and open. I will flag it for consideration by Staff, they will make any decisions as to the further life of this topic.

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Well we shall see @grahroll.
Seems to me this is just an issue that the current Federal Government clearly doesn’t want anything to do with and I would think that the Labor Opposition, if in Government, would think the same.
I will use your argument if I get a politically oriented post removed in the future, even when I think it is in the Communities interest to be aware. Like local Government elections.

OK, fair enough, I’m not a lawyer and maybe I am misinterpreting but from the draft bill

General provisions

(9) To avoid doubt:
(a) the conduct referred to in subsection (1), (2), (4), (5), (6) or (7) may be conduct that was engaged in before the commencement of this section

(emphasis should be on “before”)

but

(d) a person does not engage in corrupt conduct under subsection (2), (4), (5), (6) or (7) unless the provision creating the listed offence is in force at the time the conduct referred to in the relevant subsection is engaged in

In other words, as long as the conduct is an offence at the time in the past when the conduct occurred, it can be investigated once this bill finally becomes law, no matter how many years in the future that is (notwithstanding practical realities).

This (clause d above) would be a standard anti-retrospectivity clause, in the sense that the government should never ever make something an offence and then try someone who has done that thing before it became an offence.

In other words, on this small point, I think the legislation is reasonable.

Because Australia Post is neither. It is an independent corporation (company), as of 1 Jan 1989, that happens to be 100% owned by the Commonwealth.

If the scope of the Federal ICAC extends to any company where the Commonwealth owns some shares, this is clearly overreach. So, assuming that the government doesn’t go to that extreme, it raises the question as to what the threshold is to bring a company into the reach of FedICAC. 1 share? 5%? 10%? 20%? 50%? >50%? 100%?

As a real-world example, there was a time when Telstra was 100% owned by the Commonwealth. Then the shares were progressively sold down, so that the Commonwealth no longer directly owns any shares, although it may indirectly hold some shares still (via The Future Fund).

Every Telstra employee has the right to know whether they can be hauled before FedICAC and compelled to give testimony.

It would also raise some questions about class of shares, for those companies that have multiple classes of share.

I meant discussion of the subject, not the draft legislation but yes there is a definition in the draft legislation.

Is it satisfactory? Is it overreach? Is it vague? Is it insufficient?

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Or, cross posting what I wrote in the other topic that is discussing FedICAC:

Hearings in secret until an adverse finding avoid the use of FedICAC for all the obvious mispurposes that anyone could reasonably anticipate e.g. trial by media, show trial, publicity stunt, gotcha moments, media circus, political weapon, …

The above link (A J Brown) specifically highlights this concern, although that author presumably prefers a different solution i.e. other than secrecy.

I also proposed:

a default presumption of secrecy but that some kind of Public Interest Advocate (PIA) could make the case at the commencement of the hearings that it is in the public interest that the hearings be made public on an ongoing basis, regardless of the (as yet unknown) final outcome.

The most troubling part of the following is: the Australian Constitution (unlike its American counterpart) imposes no limitation upon the ability to enact retrospective laws and our governments of all persuasions have used them over time to absolve themselves from liability after the fact.

There are also cases where acts were made criminal after the fact, followed by prosecutions.

Some of us, myself included, thinks the constitution should be changed to remove government’s ability to make any retrospective law. While backdated tax changes are sometimes cited there are other ways to achieve the same outcome without legal retrospectivity.

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Is it possible for any other entity to own shares in Australia Post? If so why has this not happened? I didn’t think it was, please correct me if I am wrong. In that case it is necessarily owned by the government, it is responsible to the parliament if only indirectly and should be treated as such. As the gov appoints the directors it fits squarely into the definition of a QUANGO.

As for enterprises that are partially owned by the gov the situation is less clear and that is a distraction from the case in point where ownership is 100%.

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Yep. I am keenly aware that there is no legal reason why this legislation could not introduce retrospective offences - and sometimes that works in our favour and sometimes that works against our favour.

There’s no problem with backdated tax changes as such, particularly if limited to the current financial year (since you can’t have finalised your tax affairs anyway).

I was more concerned about creating new offences (in this case new tax offences) and then making them retrospective. There simply ought not be any way of doing that.

If someone is clever enough to concoct some tax reduction scheme and the government wants to make it illegal henceforth then tough luck for the government for any prior tax years.

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This could be my misconception but Australian governments appear to be fond of spinning off functions to government owned companies. I am not sure what advantage it delivers other than an ideological look and feel and more likely, putting whatever the companies do at arms length so government can disclaim responsibility when it suits, or claim credit when it suits.

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FedICAC legislation is “forever” and ownership of government corporations can change in the future - hence why I gave the example of Telstra - and hence why it is still fair enough to ask the question in respect of Australia Post (and Telstra).

Except that a corporation might use an artifice to reduce the government shareholding below 100%.

I agree that corporate ownership is a distraction from the core intention that most voters have when advocating for FedICAC. It is still important to understand what kind of overreach is possible.

I only raised Australia Post because excitable members of the body politic were demanding that the now former CEO be dragged before FedICAC over the “Cartier watches affair”.

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That and preparation for sale.

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In many cases, yet in others such as Vicroads at a state level how would it go for roads, licensing, and road rules to be regulated by a commercial company where the only responsibility is to shareholders. Airservices and Sydney Airport (etc) come to mind as disparate examples although each GOC (or once upon a time GOC) has some unique characteristics, as well as wondrous public-private partnerships that mostly have similar levels of ‘success’.

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It removes a lot of financial liability and can provide some financial incentive for the Govt that does so. If it is a Proprietary Limited Company the Govt may only lose the value of the shares they hold in the Company if it fails, they can also sell the shares by either making the Company Public (listed on the Sharemarket) eg Telstra, CBA or selling their shares to another and still keeping the Company a Privately held one… They can also raise loans that sit outside the Govts own loan balance, they can pull dividends from the Company. The reasons you noted also make it more appealing for them.

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That could be interpreted as absolving themselves of responsibility for knowingly doing the wrong thing.

Shouldn’t government only deliver government services? If Airservices fails how does that go? If the old PMG failed how would that have gone? Stumbling forth to make Telstra a private entity was an arguable decision, as is the NBN . However imagine Vicroads and similarly placed companies failing. What about if the ADF were to be privatised? No war crimes on government nor need to engage the ADF in foreign policy? No more pensions on government in return for service - just good commercial transactions between employer and employee? That would be a serious can of worms in the ifs and buts and so on.

Hasn’t that been discussed from time to time in that many of our basic services have become foreign owned and often only nominally locally controlled?

Governments have the lowest possible interest rates and usually the highest credit rating. Dividends? Is government a for profit enterprise or is it to provide services in return for taxes, essentially not-for-profit over the long term?

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