After a great deal of political haggling, pressure and negotiations, Australia’s National Anti-Corruption Commission (NACC) was established a year ago, with a view to stamping out corruption and discouraging any activities that might be interpreted as such.
So, has it lived up to its promise?
On June 6 this year, the NACC made a long-awaited announcement in relation to the highly controversial and widely panned Robodebt scheme. It issued a brief public statement that it would not pursue the Robodebt royal commission’s referrals to it.
This came as a shock to many. When the royal commission made the referrals, integrity groups and commentators had strong expectations that the NACC would undertake an inquiry into the conduct of senior public officials.
One week after the announcement, the inspector of the NACC, Gail Furness, announced she would inquire into the NACC’s decision after receiving almost 900 complaints. Some of those complaints alleged the decision was in itself an example of corruption or maladministration.
While the conduct of the NACC’s decision-making will be legally tested by the inspector, there are political tests that may be more difficult to pass. This includes whether the body is seen to be fulfilling its purpose, and whether it is publicly accountable for its decisions.
What is the purpose of the NACC?
The NACC’s purpose is similar to that of most anti-corruption commissions that have been established in Australia since the first Independent Commission Against Corruption (ICAC) in NSW in 1988: to detect, deter and prevent corrupt conduct of public officials.
The NACC made the point that the royal commission had already investigated Robodebt. Although controversial, the point is a timely reminder that anti-corruption commissions are like royal commissions with an ongoing tenure. Their mandate is to make findings as to whether corrupt conduct has taken place, not to prosecute or find a person guilty of a criminal offence.
The NACC explained its Robodebt decision by simply referring to its consideration of whether any investigation would be in the public interest. It is not legally obliged to inquire into every referral. This discretion is essential, given the flood of complaints it receives and the investigative choices it must make.
However, concepts such as public interest require complex balancing of legal, social and political considerations that affect the credibility of the NACC.
Is the NACC fulfilling its purpose?
One week before its first year of operation, the NACC reported it had received 3,154 referrals. Of those, 516 were under assessment, it was conducting 26 corruption investigations and monitoring or overseeing 21 investigations by other agencies.
Five matters have gone on to court proceedings. Two of these have resulted in convictions.
The NACC is demonstrating, on raw numbers at least, that it is committed to its purpose and achieving results. This is particularly so given any new anti-corruption commission is finding its feet in its first year while being swamped with new referrals.
The challenge for the NACC is the extent to which it is legally restrained and inclined to withhold details that the public relies on to understand investigative decisions. Sometimes these will never be made public. In most cases, there is a long lag time before a report is made to parliament or a matter is brought to court.
Like all anti-corruption commissions, the NACC will walk a legal, ethical and political tightrope: making enough of its operations public in support of its own legitimacy, while protecting the reputation and welfare of persons under investigation and not jeopardising future legal proceedings.
Is the NACC properly accountable?
The NACC is overseen by an inspector and a parliamentary committee.
Inspectors focus on the legal compliance of the commission and allegations of maladministration or corrupt conduct by commission officers.
The NACC is accountable to the parliament and to the oversight committee as the parliament’s delegate. Oversight committees have the broader purpose of monitoring the commission’s overall performance, assisted by the more forensic inquiries of inspectors.
Experience in Australian states suggests it will be crucial that the committee forms a constructive relationship with the NACC, that it exercises its power to hold some of its meetings with the NACC in public and table regular reports. This will be the public’s best opportunity to determine if the NACC is fulfilling its purpose.
The committee has not been established long enough to indicate how public and active it will be, but the more secretive the committee is, the more the NACC will struggle for public acceptance.
Just as crucial is that the committee should operate with as little political partisanship as possible. It should not only ensure accountability of the NACC, but be a guardian when the commission inevitably faces political and institutional backlash.
It is too early to say if the NACC has lived up to its promise. Its willingness to be accountable for its Robodebt decision, and the ability of the inspector and parliamentary committee to play a constructive role in that accountability, will be critical to ensuring ongoing public support.
Andrew Young is the former Clerk of the Legislative Council of Victoria, responsible for the administration of the Integrity and Oversight Committee. Andrew Young is Chair of the Victorian chapter of the Australasian Study of Parliament Group (ASPG).
This article was originally published on The Conversation. Read the original article.
