George Williams (UNSW’s Dean of Law) gives his thoughts on a federal anti-corruption watchdog.
Why is a Federal anti-corruption watchdog needed?
I think we shouldn’t be naïve and think our federal politicians and public servants are free from the temptations of corruption. We know certainly there has been major problems at the state and territory level and I think we should be aware of the same sorts of dangers at the Federal level. I think we need a national anti-corruption body, education, enforcement, investigation, to make sure the community can have confidence that these problems are being rooted out and dealt with effectively.
How would the proposed anti-corruption watchdog differ from something like the Australian Commission for Law Enforcement Integrity, the Attorney Generals Department, the Australian Federal Police, as of 2013, the Fraud and Anti-Corruption Centre within the AFP’s Crime Program, the Office of the Commonwealth Ombudsman, or the Auditor-General?
At the moment there are a number of federal bodies that do have the responsibility to deal with corruption, whether it be the police or other agencies, but there is a couple of problems with that. The first is that there are so many agencies that we lack on central agency with responsibility, and as a result, people may be unsure about where they should go to. It may also be that agencies are ineffective at educating, because problems go beyond any one particular area. A second problem, that some areas fall between the gaps. There is no agency that is properly responsible for dealing with corruption on the part of our politicians, so when you have this ad hoc, separated approach, in the end you have a scheme that has some major problems in it.
With the United States having the Department of Justice, do you think there is any particular reason why Australia has never set up an independent anti-corruption commission at the federal level?
Look it’s very hard to understand why we don’t have a Federal body of this kind. We’ve got them throughout the States, they’ve been well regarded and effective, and in fact they’ve really been necessary given the corruption they’ve exposed. So it does not make any sense why we lack such a body at the Federal level when you’ve got the same sorts of problems emerging. You’ve got to wonder whether it’s about political will, and whether our politicians don’t have the desire to bring about, what seems to me, to be much needed reform.
You mentioned a desire to bring about reform, why do you think Federal politicians don’t have that desire?
Well where these bodies have been brought about at the State level, it has often been in responsible to a scandal, something major, perhaps we haven’t had something major enough to galvanise our Federal politicians into action, because it is the sort of reform that politicians innately would want to resist. They won’t want extra scrutiny of their activities, there is many scandals in political parties that could cause great damage, and for them probably the best thing is for these issues to just go away.
Would a greater level of federal Transparency negate some of the risks of federal corruption? For example, if Federal politicians needed to publically disclose more information in relation to how taxpayer dollars are spent, as well as in regards to political donations?
Look there is a lot of things that needs to be done, one of the things is a single national anti-corruption body, but by itself that wouldn’t be enough. We clearly need to reform underlying laws that don’t provide adequate transparency, a really good example is around political donations, those laws are lax, they enable large money to be legally donated, in ways that can corruption and influence the political process. And unless you fix those laws you can have a national anti-corruption body but without the legal backing to properly do its job. What we need here is holistic reform that goes across a lot of area’s and seeks to achieve greater transparency, and have a body that can properly enforce strong laws.
In your post in the Sydney Morning Herald in October 2016, you referenced government MP Stuart Robert and his lobbying connections with Gold Coast Property Developer Sunland. How would a proposed anti-corruption commission help reduce the influence of lobbyists in Federal politics, if as you stated, it isn’t in breach of any political finance laws? Would this be more of a case for political reform rather than a watchdog?
Well a watchdog only works if it’s got good laws to watch over and enforce, so when you’re dealing with political finance you do need to change the underlying laws to make sure they criminalise corruption, undue influence. If that was done, and we had a national enforcement body, that’s the package, but I think one without the other is setting up a system that could well be ineffective.
With the huge amount of money in politics, do you think it’s possible to try and get lobbyists held accountable for undue influence?
I don’t have any doubt we can do much better, but that being said the system will never be perfect, there will always be temptations, there will be people who would be simply prepared to break the rules, to risk jail in order to gain a political advantage. What we need is a system that creates much higher disincentives for doing the wrong thing, a real sense that somebody might be caught, and if they’re caught they will pay a price. At the moment we have a system where someone might perhaps do something that clearly is against the community’s interest, amounts to some form of corruption, yet they thing there is no real chance they will get caught, or that they will get in trouble if they are, that’s the system that’s really wide open to corruption and larger problems.
You were a signatory to an open letter to Malcolm Turnbull, why do you think it was important to put your name down and do you think it can do any good? What were you hoping to achieve by putting your name to this open letter?
Well there’s been a strong groundswell of community opinion in favour of fixing these areas, Australian’s want to see a clean political system, they want politicians to make decisions on their behalf, not on the behalf of paying interests, and it’s important that those issues are kept at the forefront of public debate. And so signing your name to a letter is one way of doing that. It enables the media to reengage with the issue, people to get behind and to continue to gain momentum. At the moment we don’t have to political by in needed to bring about this reform, though the best thing to do is to just keep pressuring, keep pushing, because it has worked at the State level and I believe it can also work at the Federal level.
Malcolm Turnbull has mentioned that he would launch a watchdog in lieu of the resignation of former health minister Susan Ley in regards to a misuse of travel entitlements, but has been seemingly vague on the details, is this enough? Is this a step in the right direction?
I think it’s a good proposal the Prime Minister has out forward when it comes to a watchdog over political expenditure, but it’s very narrow in its ambit. We’re talking about politician’s expenses, travel entitlements, like it does not cover donations and doesn’t cover the largest problem in this area; and that is money being given in the hope of a return that politicians will act in favour of a donor rather than the community interest. So that is something that still does need to be fixed.
Do you think it’s likely Turnbull would implement such a program at the federal level in his tenure?
I think it’s quite possible that the current government could go in this direction if community support continues to build. The thing that would tip it over is another big scandal or two. That’s often what leads to reform in this area, and if that doesn’t happen then we can simply hope that the opposition sees a political advantage in bringing about a much needed reform, and that is often the way these things happen, that oppositions take up these issues so they can win the votes to get themselves into government.
Back on the previous question about the watchdog proposed by Malcolm Turnbull, you were talking about political donations and the influence, and buying power, that lobbyists would have, is there a balance that would need to be struck if you strengthened political donation laws, would you be worried about negating freedom of donation laws? Obviously in a free country companies would have the right to donate to any political party they see fit, so how would a piece of legislation look to balance both, that you can donate to a party of your choosing but that party doesn’t give you any preferential treatment?
Look it’s quite possible to strike a balance between free speech, even through donations, and the community’s right not to have a corrupt political process, and NSW has legislated for this quite recently. The key lies in not banning donations but limiting them to a reasonable level. So not enabling people to give large sums of money that by their very nature can corrupt the political process. Another key part is to say that if you give money, you’ve got to be transparent about it, and so if people know where money is being given, they can identify whether that money is having an undue influence. At the moment the system fails on all of those counts. It’s possible to give many tens of thousands of dollars without even realising it, vast sums can also be given that can lead to an expectation of a return, and so moving to a different, more balanced system in where we should be heading.