One certainty arising from the ALP’s election victory, and the success of the teal independents, will be the creation of a National Anti-Corruption Commission.
Labor’s policy for a National Anti-Corruption Commission states that this body will have broad jurisdiction to investigate public servants, government agencies and parliamentarians in relation to allegations of ‘serious and systemic’ corruption that occurred before or after its establishment.
It will have the power to hold public hearings and be allowed to make findings of corrupt conduct, but not to make determinations of criminal liability. Findings relating to criminal conduct would be referred to the Australian Federal Police or the Commonwealth DPP.
But the devil will most certainly be in the detail.
As has been seen in several high-profile cases involving anti-corruption bodies around Australia, the statutory definition of ‘corrupt conduct’ will be fundamental to determining the jurisdictional reach of the new body. If the draft bill put forward by independent Helen Haines is any guide, the definition of ‘corrupt conduct’ may be drawn very broadly indeed, encompassing not only any criminal or disciplinary offence but also any ‘substantial breach of an applicable code of conduct’. Dr Haines has said post-election that a broad definition of corruption is a non-negotiable for her, and you would have to assume this will also be the case for the newest batch of independents to sit on the crossbench.
Another jurisdiction-defining aspect will be identifying just what ‘serious and systemic’ corruption actually is. Both the ALP policy and Dr Haines’ draft bill refer to ‘serious and systemic’ corruption but neither attempt to define it. This phrase is used in the governing legislation of both Victoria’s IBAC and the NSW ICAC, with the former giving an entirely circular and unhelpful definition and the latter giving no definition at all.
If the new National Anti-Corruption Commission is to have the notion of ‘serious and systemic’ corruption as part of its jurisdictional DNA, then it seems highly likely that the phrase may attract greater judicial consideration in the not-too-distant future.
Duxton Hill has substantial experience in relation to anti-corruption enquiries with Tam McLaughlin having been a Principal Lawyer at IBAC and foreign bribery investigator at the Australian Federal Police.
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