John Hewson
Integrity watchdog unleashed

In less than two weeks the new National Anti-Corruption Commission (NACC) will be officially in operation – the long-awaited answer to a defining issue of the last federal election.

The need for an integrity watchdog became pressing given the failure of the Morrison government to legislate such a body as promised during its time in office, and the range of possible investigations into past government activities that were thought to have been corrupt but were being generally overlooked.

A prime example was the illegal bugging by the Howard/Downer government of the government of Timor-Leste – an effort to gain the upper hand in negotiations over mining rights in the Timor Sea, to the particular advantage of Woodside. There was also the conspicuous overpayment in 2018 for land adjoining the Western Sydney airport to build a second runway – the auditor-general found the price paid to the billionaire dairy farmer owners was almost 10 times its market valuation.

More information has emerged in recent months about several examples of potentially corrupt behaviour – keeping the commission’s business at the front of the minds of the electorate. We need resolution on robo-debt, the PwC scandal and the role of Stuart Robert in helping Synergy 360 – the consultancy part-owned by his business partner and chief political fundraiser – and its clients win government contracts worth millions of dollars while he was a Coalition government minister.

And now we have the accusations of the so-called “weaponising” of Brittany Higgins’s rape allegations by senior parliamentary figures on both sides of the aisle, and questions surrounding the large compensation payment made to Higgins by the government. This payout follows the one made to Rachelle Miller – amounting to roughly $650,000 plus legal costs, for alleged workplace abuse and bullying by ministers Alan Tudge and Michaelia Cash – which was never adequately explained.

Add to this list the constant drip-feed of information about various grants made by the Morrison government under projects such as the Community Health and Hospitals Program (CHHP), and the grant the then prime minister announced in 2019 for the Esther Foundation. A subsequent Western Australian government inquiry found this Christian rehabilitation facility was facing multiple accusations including sexual assault, gay conversion therapy and forcible restraint. The Australian National Audit Office concluded the grant was backed by “insufficient due diligence” and likely lacked lawful authority. More broadly, the audit office review of the CHHP advised the grants had “fallen short of ethical requirements” and “deliberately breached Commonwealth grant guidelines”. Similar concerns have been expressed about some infrastructure projects.

The NACC’s first commissioner, Justice Paul Brereton, came to prominence investigating allegations of war crimes in Afghanistan and has clearly demonstrated his investigative capacities in extremely difficult and challenging circumstances. His deputies are Nicole Rose, who was chief executive of financial intelligence and anti-crime agency the Australian Transaction Reports and Analysis Centre (AUSTRAC), and Ben Gauntlett, the former disability discrimination commissioner at the Australian Human Rights Commission. The chief executive is Philip Reed, who has led the New South Wales corruption watchdog, the Independent Commission Against Corruption (ICAC).

It is pointless to speculate at this stage about which investigations they will initiate – these will be reported once it begins its operations. The legislation specifies mandatory referral obligations on the part of the heads of government agencies and parliamentarians, which it seems reasonable to imagine will help determine the early focus of the commission.

I doubt whether many parliamentarians have yet recognised their referral responsibilities or what information they will need to provide to meet the requirements of a referral. The attorney-general’s website says corruption issues must be referred to the commission by agency heads from July 1, but a grace period of 28 days will apply to any that occurred before the NACC started. For example, Senator Linda Reynolds has announced she will refer the Higgins compensation payment to the commission. She will need to state the reason why she suspects corrupt conduct, dates and time frames, and the names of those public officials, ministers or others she suspects were engaged in the corrupt behaviour, with supporting documents or evidence. This may become the opposition’s avenue to explore its theory that the compensation was somehow linked to the provision of early information of the alleged rape to Labor ministers.

There are likely to be many referrals regarding matters that have arisen in relation to parliamentary committee work or in senate estimates. I suggest the inquiry into the Australian Securities and Investments Commission might be fertile ground, given it has received hundreds of submissions asserting bad financial behaviour.

It is unclear whether we are likely to be able to follow many of the proceedings closely, though, as it remains a decision of the commission as to which investigations and hearings will be made public. The former prime minister Scott Morrison memorably resisted public hearings, repeatedly claiming the NSW ICAC often operated as a “kangaroo court”. It’s interesting to remember that ICAC was established with a view to exposing corruption by senior members of the Labor Party, and ironically, one of its earliest “victims” was the then premier, Nick Greiner. He resigned amid the fallout from an inquiry into his offer of an executive position at the Environmental Protection Authority to Liberal turned independent member of parliament Terry Metherell.

A particular challenge for the NACC will be to determine whether so-called pork-barrelling is corrupt behaviour. The Morrison government was widely criticised for its sports and car park rorts, various grants schemes for communities and even some disaster assistance, with accusations of attempting to distort the political process.

Morrison took this questionable behaviour a step further by having his then Finance minister, Simon Birmingham, attempt to “normalise” it. It certainly didn’t pass the pub test.

As another element of anti-corruption oversight, and one that should be linked to the activities of the NACC, the government has also foreshadowed reform of campaign funding. A particular feature of the Morrison government – and one that became the focus of the integrity debate during the last election – was its conspicuous favouring of mates and donors in its decision-making, as opposed to the national interest, which should have been its principal concern. Campaign funding reform must work to eliminate the possibility that our governments and their processes can be bought, which should entail caps on individual and organisational donations, limits on campaign spending and probably also requirements for truth in political advertising.

The interests of the electorate are not confined simply to exposing corrupt behaviour, but also, importantly, to ensuring some form of accountability and penalty for corrupt behaviour. Governments should minimise the scope for corrupt behaviour by ensuring all decision-making processes are evidence-based and as transparent as possible.

One thing the Albanese government should expect is that the processes of the NACC will be closely monitored by the independents, whose political influence was key to seeing it legislated, in particular the federal member for Indi, Helen Haines, who succeeded strong advocate Cathy McGowan. Haines and her fellow independents have clear expectations about how it should operate and commitments to their electors to ensure an effective watchdog. The government still needs to finalise the new whistleblower legislation to coincide with the start of the commission.

An unexpected source recently made a strong case for a powerful NACC. In a rant on his Sky News program, former senator Cory Bernardi claimed “there are simply too many examples of mates being enriched by government contracts or big payments being made for questionable reasons not to have them pursued by outside investigators. They fall on both sides of the political aisle too.”

He went on to say: “Only time will tell if the NACC will be able to clean out the crooks and restore some confidence to one of our most important public institutions.”

It’s not often we agree.

This article was first published in the print edition of The Saturday Paper on June 17, 2023 as "Integrity watchdog unleashed".

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