Corruption

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GUEST OBSERVATION
Attorney-General Christian Porter added a little more flesh to the bones of the long-awaited Commonwealth Integrity Commission this week. In a National Press Club address, Porter argued there must be a balance between having a powerful investigative body and fairness to individuals investigated by the commission.
Yet commentators have roundly criticised <a href="https://www.pm.gov.au/media/commonwealth-government-establish-new-integrity-commission" target="_blank">the government’s model</a> for being <a href="https://theconversation.com/the-proposed-national-integrity-commission-is-a-watered-down-version-of-a-federal-icac-108753" target="_blank">watered down</a> and a <a href="https://www.smh.com.au/national/coalition-s-anti-corruption-body-a-sham-retired-judge-says-20190512-p51mk2?fbclid=IwAR1khmMDTdzhxlszyEKZDnUYS_D5OPxtaWHR6CO8l4_eqv6dzd0xjcMVV4M" target="_blank">sham</a>.
Queensland LNP MP Llew O’Brien has <a href="https://www.theguardian.com/australia-news/2019/nov/21/lnp-mp-may-cross-floor-over-federal-integrity-commission-legislation" target="_blank">warned</a> he may cross the floor and vote against the government on this issue. O'Brien believes politicians and their staff should be held to the same standards as law enforcers.
Crossbench MPs have also <a href="http://www.rebekhasharkie.com.au/crossbench_calls_for_national_integrity_commission_with_teeth" target="_blank">called on</a> the government to establish a national integrity commission “with teeth”.
The government intends to release a draft bill this year.
So, what is the government’s model? And why has it been criticised?
The government’s model
The government’s proposed CIC has two parts: the law enforcement division and the public sector division.
The law enforcement division applies only to law enforcement agencies and those with coercive powers. The public sector integrity division covers the rest of the public sector, federal service providers, subcontractors, as well as MPs and their staff. The commission will have the power to conduct public hearings only through its law enforcement division.
By contrast, the public sector division will not have the power to hold public hearings or make public findings of corruption. Instead, it will investigate and refer potential criminal conduct to the director of public prosecutions.
This is a far more limited jurisdiction compared to its equivalent state counterparts, such as the New South Wales Independent Commission Against Corruption (ICAC), which can conduct public hearings and make findings of corruption in the public sector.
All states now have an anti-corruption commission and the federal government is lagging behind.
Why not everyone is happy with the government’s model
The government’s model has been criticised for a few reasons.
The first is that it would fail to achieve its main aim of exposing corruption in the public sector.
The bar for investigation is too high, requiring a reasonable suspicion of corruption amounting to a criminal offence before an investigation can even begin. This is a difficult hurdle to clear.
Lessons from the state anti-corruption commissions show evidence of corruption has been unveiled through investigations based on allegations, rather than before an investigation begins.
Another major criticism is that the proposed CIC will not have the power to hold public hearings.
Public hearings ensure proceedings are not cloaked in secrecy and will increase public trust. Notable inquiries in Australia have exposed major corruption through public hearings. This includes the <a href="https://www.ccc.qld.gov.au/about-us/our-history/fitzgerald-inquiry" target="_blank">Fitzgerald inquiry</a> that revealed widespread corruption in the Queensland police force, leading to the resignations and imprisonments of various former ministers and officials.
But the attorney-general has raised legitimate issues about damage to individual reputations where a person subject to a public hearing has their reputation tarnished in the media, but is ultimately found not guilty by the courts.
This can be ameliorated by having the option of public and private hearings. Public hearings should be used only when it is in the public interest, balanced with considerations of individual reputation.
Critics have also complained about the CIC’s inability to initiate investigations itself and to receive complaints directly from the public. It can only investigate after a referral from the public sector, or if the CIC is conducting an investigation and discovers additional corrupt conduct in a different department. This is a significant limitation.
Other comparable investigative bodies have “own motion” powers to investigate issues based on public complaints.
There is no principled reason why we should keep MPs, their staff and public servants to a lower standard than law enforcement agencies. Corruption can manifest equally within the ranks of MPs, the public sector and law enforcement agencies.
The need for a national integrity commission
The public is <a href="https://news.griffith.edu.au/2018/08/20/griffith-research-shows-trust-in-government-slides/" target="_blank">calling out</a> for a national integrity commission, with two-thirds (67%) of Australians in favour of one.
A group of judges have <a href="https://www.theguardian.com/australia-news/2019/jan/23/federal-anti-corruption-body-must-have-power-to-make-arrests-and-conduct-searches-judges-say" target="_blank">signed</a> a letter calling for a national integrity commission with strong powers and the ability to hold public hearings.
Australians want a robust and well-resourced national integrity commission that has strong powers to achieve its mandate. The government should reconsider its model in light of public criticism.<img src="https://counter.theconversation.com/content/127502/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;">
Yee-Fui Ng, Senior Lecturer, Faculty of Law, Monash University.
This article is republished from <a href="http://theconversation.com" target="_blank">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/governments-commonwealth-integrity-commission-will-not-stamp-out-public-sector-corruption-heres-why-127502" target="_blank">original article</a>.
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j.ballantyne1990-6AQqhLzZaK

Government’s Commonwealth Integrity Commission will not stamp out public sector corruption — here’s why

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<img src="https://counter.theconversation.edu.au/content/66921/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1">
GUEST OBSERVER
There has been significant suspicion in Australia and elsewhere on the wealth of particular business people, investors and companies from China.
There’s always the suggestion that there is something unacceptable about it, whether it be tax evasion, corruption money, stolen money and illegitimate or illegal business ventures. 
However this is because we’re looking at the situation with Western goggles on. When you consider the way things run in China, corruption starts to look very different.
There is a lot of academic, anecdotal and official material to support the suspicions about China. The problem of corruption is now notorious not least because of the Chinese government’s current anti-corruption campaign. 
The diversion of state assets is one form of corruption of major concern in China. This is when resources that belong to the state are diverted into private hands. It takes many forms, from direct cash or asset diversion to the selling of land to developers when there is ostensibly no right to sell.
Pirated goods and fake products as a result of illegitimate businesses is another side of many corrupt practices.
Developed rule of law has simply not existed in China since the economy changed at the end of the 1970s. Although arguably changing, the system in China has been that, those who entrepreneurially take advantage of available state resources and generate wealth for themselves and the country are usually allowed to do so. Many of these people are themselves public officials or closely connected to them.
In addition, the evolving system of government has encouraged local state entrepreneurship through vague laws and localised administrative decision-making and competitiveness. Local officials are meant to adapt laws to fit competitive local economic development and they do. 
A large section of the new wealthy middle class has become rich on the exploitation of housing allocations. They got these from connections in particular governmental and state owned enterprise posts, in the previous era. This may appear illegitimate but the state is now actively fostering this middle class for political and economic goals. 
China generally supports those who took advantage of state assets in the earlier economic era and successfully generated economic activity because of the role they played in the country’s economic transformation.
This means the government doesn’t really see these people as corrupt or tax avoiders. In fact, tight definitions of legitimacy have little to do with China’s current and past reality. 
Notably, a large part of the story of China’s successful economic transformation is the story of individuals and officials who violated restrictive regulations and laws on economic activity to positive economic outcomes for the country. 
However, this also means an official can be accused of corruption as part of a politically motivated initiative to remove them. A business person can be accused of breaking a business law or tax evasion for a similar purpose.
For example, there are cases where businesses that local officials view as desirable to the local economy are given tax treatment that is far more generous than the law allows. If the relevant local leaders are subsequently the target of a political campaign, this tax deal can be presented as evidence of corruption. The business concerned, on the other hand, may be accused of tax evasion. 
That said, there is no doubt that there are true ill-gotten gains in China and truly corrupt people. It’s just that this truth needs to be understood through a more complex and murky institutional prism of legitimacy. 
This all raises some significant problems for other countries that seek to attract Chinese capital and business but do not like the idea that this money may not be legitimate. 
It would be unfair to argue that it is illegitimate simply because it does not accord with the standards applicable in Western countries. Likewise, it may be unfair not to protect a person accused of corruption, if the truth is that they are actually the target of a politically motivated persecution.
Nolan Sharkey is Winthrop Professor of Law, University of Western Australia and author for The Conversation. He can be contacted <a href="https://theconversation.com/profiles/nolan-sharkey-64745" target="_blank">here</a>.
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