Future frontiers in Australian integrity frameworks: Enhancing corporate integrity

In his keynote address last week at the UN Global Compact Network’s Australian Dialogue on Bribery and Corruption, Commissioner Paul Brereton AM RFD SC shed light on the implications of the new National Anti-Corruption Commission (NACC) for the corporate sector, businesses and legal professionals.???

Broad jurisdiction

The Commissioner noted that the NACC’s jurisdiction goes well beyond the conduct of parliamentarians, despite this being the focus of ‘much of the public debate and media clamour’.

‘Although the touchstone of the jurisdiction is the involvement of a Commonwealth public official,’ he said, ‘it has significant implications for business and the corporate sector, not least because of the scope of the definition of Commonwealth public official.’

That definition includes employees of government agencies, including consultants and contractors. This broad scope underscores the importance of addressing corruption within the corporate sector and the need to embed robust and rigorous integrity frameworks.

‘In light of the extent to which Government has in recent years retained external consultants, and the extent to which the delivery of many Commonwealth services is outsourced to contracted service providers, this is a large field, which I expect will attract considerable interest from the Commission.’?

Investigating corrupt conduct

The mission of the National Anti-Corruption Commission is to enhance integrity in the Commonwealth public sector, by deterring, detecting and preventing corrupt conduct involving Commonwealth public officials, through education, monitoring, investigation, reporting and referral.

Commissioner Brereton made the point that?corrupt conduct is not necessarily criminal conduct. The Commission does not make findings of criminal guilt, to which different rules of evidence and proof apply.

‘If we are satisfied there has been corrupt conduct, we will issue a report with a finding to that effect. Such a finding is a serious one, not lightly to be made,’ the Commissioner said.

It is important that the Commission is able to expose and investigate corrupt practices that may not meet the high standard of criminal proof.

‘If we uncover evidence of criminal conduct, we may refer it to a prosecuting agency. It is precisely in the area where it may not be possible to establish criminal conduct to the high criminal standard of proof that the Commission’s work can be most important in enhancing integrity – by investigating and exposing corrupt conduct, even where it cannot be prosecuted in a criminal court.’

Preventing corruption

Alongside its investigation function, the Commission plays a vital role in preventing corruption through educating the public sector and the public. The Commission will provide guidance and information to help public officials understand and address vulnerabilities to corruption, and ‘to help agencies and governments avoid falling off the integrity track’.

The Commission will be able to conduct public inquiries into corruption risks and vulnerabilities and measures to prevent corruption.

‘For example,’ Commissioner Brereton said, ‘we may conduct a public inquiry into risks and vulnerabilities, not involving a specific allegation of corruption, in a program in which contractors are used by a government agency to deliver benefits intended for members of the public.’

The role of legal professionals

‘In this forum,’ the Commissioner said, ‘it is appropriate also to say something of the role of lawyers.’

He began with an observation by Chris Merrit of The Australian that the Robodebt saga might not have happened but for two factors – ‘that weak government lawyers averted their eyes as their agencies inflicted unlawful practices on vulnerable people’ and ‘the systems aimed at holding government legal services to an acceptable standard simply did not work’. [1]

Commissioner Brereton continued:

‘Merritt’s words called to mind an article in the Winter 2023 issue of the journal of the ACT Law Society,[2]?in which Justice David Mossop of the Supreme Court of the Australian Capital Territory explained that in the United Kingdom, government lawyers operate under formal guidance that the standard of a “respectable legal argument” is sufficient foundation for government action; that advice should be formulated in terms of legal risk, rather than a conclusion as to what the law is; and that only if there is “no respectable legal argument that can be put to a court” should they advise that the proposed action is unlawful – and even then, only after reference to more senior managers.[3]

‘The tendency to express advice in terms of risk – that a particular course has high, medium or low legal risk, often defined in percentage terms – rather than in terms of what the law is, is not confined to the United Kingdom, nor I suspect to government lawyers. A minister, or a board of directors, given advice that a course involves high legal risk, can nonetheless decide to take that risk. They might well be less inclined to do so if the advice was that, in the opinion of the lawyer, the proposed course of action was unlawful, even if it was unlikely that anyone would ever be able to mount a challenge to it. A related practice is providing a draft advice to the client which, if undesired by the client, is not finalised.

‘Mossop J’s view, which I respectfully share, is that it is the duty of a lawyer to provide the client with the benefit of the lawyer’s legal opinion, not a risk assessment. The lawyer should form an opinion as to what the law is and requires, and so advise the client. Of course, that advice can be hedged with reservations – “a different view is arguable”, “my opinion might turn out to be incorrect”, and “there is no knowing what the High Court might do”. But ultimately, the client should receive the lawyer’s opinion on the law, which the lawyer is trained and qualified to provide, and not a risk assessment, which the lawyer is not qualified to give and which is in reality speculative.’

The Commissioner clarified that while these practices are not necessarily corrupt, they may be ‘corrosive of integrity’.

‘Integrity in governance is fundamental to ensuring that decisions are made and actions are taken in the public interest, unaffected by private interest; and that resources intended to be applied the benefit of the community reach their destination and are not diverted or eroded.’

Opportunity for change

The convergence of public demand for stronger integrity frameworks, the election of a government with a mandate to address that demand, and the Australian Public Service's commitment to a pro-integrity culture create a unique opportunity for transformative change, the Commissioner said.?

‘The Commission is an instrument for [that change], and we will be fearless, but fair, as we go about that business.’

To seize this moment, all stakeholders must be determined to prioritise transparency and integrity.?

‘We must embed in our institutions, from the top down and at every level, a culture in which giving honest if unwelcome advice and reports is not dissuaded, but encouraged, and in which all embrace making decisions and giving advice honestly and impartially, on the evidence and the merits, in the public interest and without regard to personal interest; reporting honestly, without embellishment or omission; and accepting responsibility, including for the inevitable mistakes.’

References

[1] Chris Merritt, 'Robodebt casts cloud over government lawyers', The Australian, 14 July 2023

[2] The Hon Justice David Mossop, “Government Lawyers and the Rule of Law”, Ethos, Issue 268: Winter 2023, pp40-45

[3] House of Lords, Select Committee on the Constitution 9th Report of Session 2022-23, The roles of the Lord Chancellor and the Law Officers, Ordered to be printed 14 December 2022 and published 18 January 2023, esp at [140]-[141]