DISCOVER NGO CORRUPTION MONITORING DESK (www.dis-cover.org)
The claim
Prominent barrister Geoffrey Watson SC has criticised Australia's failure to establish a federal anti-corruption watchdog, telling ABC's RN Breakfast that it puts us "out of step with our international obligations".
Mr Watson, the former counsel assisting the NSW Independent Commission Against Corruption, said: "Australia is a signatory to a United Nations declaration against corruption … We're a signatory to a convention. By failing to put in place an appropriately funded, appropriately skilled agency, we're in breach of that agreement as we speak."
He repeated the claim later that day in a speech to the Accountability and the Law Conference, arguing that the agreement "obliges Australia to create and maintain an independent anti-corruption agency" and that we "remain in breach of that obligation".
So are we in breach of our international obligations by not having a federal anti-corruption body?
RMIT ABC Fact Check takes a look.
The verdict
Mr Watson's claim that Australia is in breach of its treaty obligations is debatable.
Yes, Australia is bound by the United Nations Convention against Corruption, which includes a requirement to "ensure the existence of a body or bodies or persons" with the power to combat corruption "through law enforcement".
But the convention allows nations to use whatever system best suits their particular circumstances, and their approaches can be wide and varied.
In Australia's case, our "multi-agency" integrity system relies on a variety of state and Commonwealth bodies to investigate corruption in the public sector.
Included among these agencies is the national watchdog for investigating Commonwealth public sector corruption — the Australian Commission for Law Enforcement Integrity.
Experts and advocates are divided on whether this system is sufficient for Australia to comply with its treaty obligations, the result of their different interpretations of the convention's requirements.
Some argue that we will not be meeting our obligations until our system is made to be effective by being comprehensive.
For the Australian Commission for Law Enforcement Integrity to meet this expectation, its funding would need to be increased, its jurisdiction expanded and its ability to instigate investigations broadened.
Others say that simply by having federal law enforcement officials who are not subject to political interference could get Australia across the line.
And while they argue that a single, national watchdog might be desirable, it may not be necessary for meeting our obligations.
Most countries considered "cleaner" than Australia in terms of corruption do not have such a body.
What kind of conduct are we talking about?
Corrupt conduct is not necessarily the same as criminal conduct.
The Attorney-General's Department has described it as "one end of a continuum of other undesirable behaviours".
In fact, there is no agreed definition. One Senate joint committee noted that:
To keep it simple, Fact Check uses a definition from the global anti-corruption advocacy network Transparency International: "the abuse of entrusted power for private gain".
An example of this could be a politician granting "access" in exchange for money.
AJ Brown, the head of Griffith University's Public Integrity & Anti-Corruption research program and a board member of Transparency International Australia, told Fact Check that "the federal anti-corruption issue is focused very squarely on public integrity and anti-corruption for the Federal Government".
That means the conduct of public servants and parliamentarians.
What are Australia's international obligations?
The UN's Convention against Corruption imposes a wide range of obligations on its 182 participating states, covering areas such as corruption prevention, law enforcement and international co-operation.
Australia ratified the UN convention on December 7, 2005.
Mr Watson told Fact Check he was referring to the convention's Article 36, which states that:
Australia's approach to fighting corruption
A national anti-corruption watchdog has been on the agenda for many years. The Greens, for example, have introduced three Bills on the subject since 2010.
In January 2017, leading lawyers and academics penned an open letter calling on Prime Minister Malcolm Turnbull to establish a federal anti-corruption body.
A Senate Select Committee is again considering the idea and is expected to report its findings this month.
The Commonwealth Government remains opposed to creating such a body, with the Attorney-General's Department arguing in favour of the current multi-agency approach:
At the state level, specialist anti-corruption bodies have existed for some time. They are focused on corruption in the state public sector — including, in some cases, state parliamentarians — but have varying powers; for example, in their ability to initiate investigations.
These bodies are not courts but some can recommend that charges be laid.
At the Commonwealth level, responsibility for investigating public sector corruption is shared by a range of agencies with different jurisdictions and powers, as outlined in a 2012 UN review.
However, corruption involving Commonwealth parliamentarians can only be addressed through political mechanisms, such as elections or (in rare cases) a royal commission.
Alleged criminal conduct, though, would still be investigated by law enforcement agencies.
Does a multi-agency approach fit with the UN convention?
As the convention's technical guide explains, Article 36 specifies the need for people, or a body or bodies "whose core focus must be law enforcement" — including investigative and possibly prosecutorial functions.
The guide also makes clear that "the convention only sets minimum standards" and that adjusting its requirements to suit Australia's "specific domestic situation" is entirely within the rules.
That doesn't mean there isn't room for improvement.
In his interview, Mr Watson called Australia's approach "piecemeal". Transparency International Australia has also described Australia's system as having "significant gaps and weaknesses".
And the Accountability Round Table, an independent advocacy group dedicated to improving government integrity, has argued that putting everyone in charge means no-one is in charge:
"[T]he multi-body approach and shared responsibility results in no body having ultimate responsibility and each body involved being likely to assume that all is well because there is someone else making sure that no corruption is occurring."
Does Australia already have a national anti-corruption body?
Transparency International Australia, in a 2017 submission to the Senate, said "it is not correct that the Australian Government has no anti-corruption agency".
They said the Australian Commission for Law Enforcement Integrity is "an anti-corruption agency with strong experience and high strategic capability", albeit "one with a limited jurisdiction, and insufficient resources, powers and profile".
Griffith University's Professor Brown told Fact Check that, unlike the Australian Federal Police, which is only interested in criminal matters, the Australian Commission for Law Enforcement Integrity will investigate any corruption issue: "And that's really broadly defined. In fact they can almost define it for themselves."
The type of corruption the commission can investigate is also "far, far broader than any of the state anti-corruption commissions," he said.
The Law Council of Australia has argued that, aside from the commission, "there is no dedicated Commonwealth authority mandated to address claims of misconduct or corruption within federal Parliament and Commonwealth agencies more broadly".
And the Accountability Round Table has said that the Australian Commission for Law Enforcement Integrity is "the only body with any relevance" to Article 36.
However, the commission can only investigate corruption within specific law enforcement agenciesprescribed by legislation (for example, the Australian Criminal Intelligence Commission, the AFP, the Department of Immigration and Border Protection and prescribed aspects of the Department of Agriculture and Water Resources).
And, according to its 2015-16 annual report, it had just 52 staff.
What does the UN have to say?
In May 2012, the UN released a summary review of Australia's progress towards implementing the UN Convention against Corruption.
It recommended that Australia continue developing "a comprehensive national anti-corruption action plan, which will include an examination of how to make anti-corruption systems more effective".
There was, however, no mention of Australia failing to meet its Article 36 obligations.
In fact, the reviewers noted Australia's "effective system for co-ordination and sharing of intelligence among anti-corruption institutions" and praised the establishment of the Australian Commission for Law Enforcement Integrity as "a leading anti-corruption institution" and evidence of our "significant proactive approach to anti-corruption".
Assistant Professor Cecily Rose, from Leiden University's Grotius Centre for International Legal Studies in the Netherlands, told Fact Check that an uncritical review does not necessarily mean Australia has properly implemented Article 36.
"Sometimes the reports that are produced through this review process clearly indicate that a state has not complied with a particular provision. Most of the time, however, the reports are more nuanced, and indicate that there is room for improvement."
Fact Check found evidence of this less-than-critical language in the UN's review of Zimbabwe.
Despite the country being frequently ranked among the world's most corrupt, the report makes no mention of non-compliance with the convention.
Ultimately, getting a definitive answer on Australia's compliance may be unlikely unless it comes from an international court, such as the International Court of Justice.
But Dr Rose said that while another state could conceivably take Australia to court over an alleged breach of the convention, this probably wouldn't happen.
"It's hard to see why another state party would be motivated to pursue such a claim," she said.
The experts who agree
Stephen Charles QC — a former Victorian judge who advised former premier Ted Baillieu on establishing Victoria's anti-corruption body, IBAC — has described the Australian Commission for Law Enforcement Integrity as "Australia's principal excuse for doing little or nothing to comply with Article 36".
[There is] absolutely no question that Australia is in breach.Stephen Charles QC
Mr Charles, who is a member of the Accountability Round Table, told Fact Check there is "absolutely no question that Australia is in breach" of the UN convention.
His position echoes that of the Round Table, which has said that to satisfy the obligations of the convention, anti-corruption bodies must be able to carry out their functions "effectively".
And such bodies are not effective unless they "cover the whole of the domestic public sector and cover the activities of all government agencies".
Mr Charles said that state corruption bodies cannot summon or investigate Commonwealth public servants or parliamentarians, and the Australian Commission for Law Enforcement Integrity's jurisdiction is much too limited for this.
The commission, he said, was also "completely unable to carry out the function" required by the UN convention because it had neither the specialisation nor the resourcing needed for it to be effective.
"Among other things, its workforce is about half of Victoria's IBAC," he said.
He added that the Australian Commission for Law Enforcement Integrity was not sufficiently independent to satisfy the convention. That's because an investigation can only begin when a Commonwealth agency head refers information about corruption — in their own agency — to the Integrity Commissioner.
Those who disagree
On the other hand, Professor Brown told Fact Check that he does not believe Australia is failing to meet its obligations under the UN convention.
There are a lot of countries that don't have independent anti-corruption agencies … and they're not regarded as being in breachProfessor AJ Brown
While he believes establishing an anti-corruption watchdog would make us "more compliant with the spirit and the purpose of [the convention]", he noted that "the lack of a federal independent anti-corruption agency in and of itself doesn't put us in breach of Article 36".
"There are a lot of countries that don't have independent anti-corruption agencies … and they're not regarded as being in breach," he added.
Part of the reason we're compliant, he said, is because the article is so broadly worded.
First, it allows for either a body or bodies or persons. And second, though it requires that these groups be given "the necessary independence" to do their job effectively, this is about setting a minimum standard of independence for law enforcement officials so they can choose what to investigate or whom to prosecute.
"It really means that the officials … have effective independence to fulfil those roles that isn't subject to direction by the executive government of the day or subject to party political control," Professor Brown said.
He told Fact Check that this requirement is satisfied (at the Commonwealth level) by bodies such as the AFP (whose staff have the discretion to charge) and the Commonwealth Department of Public Prosecutions (which has the independence to choose whether to lay charges or prosecute).
This line of reasoning is echoed by the British Government, which in 2011 argued that it complied with Article 36 by creating anti-corruption teams within its existing law enforcement and prosecutorial bodies, for example, the Crown Prosecution Service.
Adam Graycar, a Professor of Politics and Public Policy at Flinders University and a former head of the Transnational Research Institute on Corruption, agreed that Australia was meeting its obligations.
The [UN convention] didn't orient itself to federal systems, and they're different [to national systems].Professor Adam Graycar
"We are not in breach," he said. "We do have a number of agencies at the federal level and we have agencies at the state level."
Pointing to the existence of ICAC equivalents in every Australian state, he said: "The [UN convention] didn't orient itself to federal systems, and they're different [to national systems]."
"We have an Auditor-General, which would probably meet the criteria of Article 36; the federal police might meet the criteria of 36 because they have a corruption and fraud office."
He also described Article 36 as "very broad", but called the UN framework "one of the most useful conventions because it focuses the attention, and it gets governments to take the issue seriously and deal with it in whatever way they see fit".
Professor Graycar referred to other countries in Transparency International's Corruption Perceptions Index, a respected measure of corruption across countries.
For the past two years, it has ranked Australia as the 13th least-corrupt country.
"In the top 10 [countries], only one [Singapore] has a national anti-corruption agency. The rest don't."
Sources
- Geoffrey Watson SC, RN Breakfast interview, August 17, 2017
- Attorney-General's Department, The Commonwealth's Approach to Anti-Corruption, 2012
- Joint Committee, Inquiry into the Operation of the Law Enforcement Integrity Commissioner Act 2006 (Final Report), July 7, 2011
- Transparency International, How do you define corruption?, September 2017
- UN Convention, Signature and Ratification Status, December 12, 2016
- UN Convention against Corruption (UNCAC), 2003
- Open Letter: Establish a Federal Anti-Corruption Watchdog, January 14, 2017
- Attorney-General's Department, Select committee submission, April 2017
- UNCAC Implementation Review Group, Australia's progress (summary), May 15, 2012
- UNCAC Implementation Review Group, Zimbabwe's progress (summary), June 21, 2013
- UN Office on Drugs and Crime, UNCAC Technical Guide, 2009
- Transparency International, Anti-corruption agencies in Australia, January 2016
- Accountability Round Table, Select committee submission, April 30, 2016
- Transparency International Australia, Select committee submission, April 13, 2017
- Law Council of Australia, Submission to Australia's UNCAC review, May 24, 2011
- Australian Commission for Law Enforcement Integrity, ACLEI's Role, September 2017
- Australian Commission for Law Enforcement Integrity, Annual Report 2015-16
- Transparency International, Corruption Perceptions Index 2016, January 25, 2017
- UK Government, UNCAC self-review, July 13, 2011
- Stephen Charles QC, speaking to the Select Committee on a National Integrity Commission, May 17, 2017
