The abrupt resignation of the National Anti-Corruption Commissioner Paul Brereton is a pivotal moment for the federal watchdog. For years, questions over the commissioner’s leadership arising from concerns about his ability to manage conflicts of interest had undermined public confidence and trust in a key Australian integrity institution.
The government has committed to a “merit-based process” to appoint the next commissioner.
But can we trust the government to do that and rebuild trust in our national anti-corruption commission? Research finds governments often abuse their power to appoint, fund and oversee integrity agencies in order to avoid serious oversight.
How do we avoid this abuse and safeguard the independence of our integrity agencies? A new report from the Centre for Public Integrity outlines three key ways to ensure these agencies are truly independent.
These reforms should guide the appointment of a new national anti-corruption commissioner.
Fundamental tensions
To do their job, integrity agencies must be independent from the government. This means they must be able to investigate and criticise governments and public officials without fear of political retaliation.
But in practice there are a few problems with this idea.
Unlike the courts and parliament, these agencies are not protected in the Constitution. Instead, they are often created by the government through an act of parliament.
This creates a foundational tension: integrity agencies are designed by government, to hold the government to account.
The government has a vested interest in these institutions being weak. Governments have been accused of establishing weak watchdogs, or deliberately “clipping the wings” of these bodies by amending laws.
There are also operational tensions. Governments can weaken integrity agencies in more subtle ways.
One way is through political appointments. In Australia, we have seen such politicisation, for instance, in appointments to the former Administrative Appeals Tribunal, ultimately leading to its abolition.
Or they might be in the form of cutting funding. This happened most recently in the current budget, with a funding cut in real terms to the Australian National Audit Office. The office had previously said that with its current funding levels, it would not be able to meet its responsibilities for performance audits.
On budget day, the joint parliamentary committee on public accounts and audit expressed its ongoing concern about the operational capability of the office given its financial position.
A new report released by the Centre for Public Integrity outlines a number of ways the independence of these agencies must be protected across three key pillars: appointments, funding and oversight.
You can’t choose your own watchdog
Our analysis shows that across the country, there is significant variation in how heads of integrity agencies are appointed. Many governments exercise broad and opaque discretion over who leads the core integrity agencies.
This creates obvious risks. If governments can appoint agency heads through opaque processes, there may be concerns — justified or not — about whether those leaders are suitably qualified or truly independent.
The controversy surrounding Brereton illustrates the stakes involved. Questions about conflicts of interest under his leadership have fuelled broader concerns about the lack of a transparent, merit-based appointment process for the role.
Our report recommends legally requiring open advertising of senior integrity positions, independent selection panels and greater parliamentary involvement in appointments.
There’s no need to wait. The government could implement such a process in the upcoming NACC appointment, instead of relying on vague platitudes of a “merit-based process”.
This proposal is similar to one that has been successfully adopted elsewhere, including for the reformed Administrative Review Tribunal.
We also recommend longer but non-renewable terms for agency heads to alleviate any pressure leaders may feel in seeking reappointment.
Handing over the purse strings
The second problem then is funding. Most Australian integrity agencies rely on governments to decide how much money they receive each year.
In practice, this means the government can place pressure on agencies by limiting their resources. Underfunded integrity agencies cannot properly investigate corruption, scrutinise spending or carry out oversight work.
Our report argues integrity agencies should have stronger protections around funding, again, drawing on models that have been successfully developed elsewhere, particularly in the ACT for their “Officers of Parliament”.
Our proposal includes separate parliamentary processes and independent funding panels that can publicly recommend appropriate funding levels. Governments would still make final budget decisions, but there would be greater transparency when they made decisions that cut agency funding.
Genuinely independent oversight
Finally, independence does not mean integrity agencies should operate without accountability. These agencies exercise significant powers. Some can compel evidence, conduct hearings and make findings that seriously affect reputations and careers.
So oversight is essential – but that oversight must be independent. Oversight systems for integrity agencies are often poorly designed. In many jurisdictions, for instance, parliamentary oversight committees are dominated by government members.
A better system would involve parliamentary committees not dominated by government MPs, alongside independent inspectors for agencies exercising coercive powers.
The importance of such roles is underscored by the work of the NACC Inspector, in receiving and investigating complaints about the commission’s decision not to investigate Robodebt referrals.
Is real independence possible?
Australia has invested heavily in creating a set of core integrity agencies. Even if reluctantly, every jurisdiction across the country now has an anti-corruption agency, auditor-general and ombudsman office.
The next challenge is ensuring those institutions are sufficiently independent to do their job. Across the country, there are good designs that alleviate the operational pressures these agencies face. Adopting these designs will help secure better and more transparent funding, appointment, and oversight of core integrity agencies.
These more independent integrity agencies can in turn help safeguard the health of our democracy.
Gabrielle Appleby is Professor of Law at the UNSW Law School, UNSW Sydney.
William Partlett is Associate Professor of Public Law at The University of Melbourne.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
