AUSTRALIA’S
ANTI-CORRUPTION SYSTEM
Australia has a
wide-ranging anti-corruption system. Australia signed the United Nations
Convention against Corruption (UNCAC) on 9 December 2003 and ratified it on 7
December 2005. Since then Australia has implemented the mandatory requirements,
and some non-mandatory requirements, prescribed in the provisions of UNCAC. The
Australian Government believes UNCAC is an important step in combating
corruption.
Australia’s approach to
fighting corruption is based on four key elements:
• Constitutional safeguards
• Accountability and transparency
• Criminalisation of corruption, and
• International
cooperation and technical assistance.
CONSTITUTIONAL SAFEGUARDS:
Australia’s constitutional democracy (based on the Westminster system)
provides the checks and balances needed to guard against corruption. The
separation of powers and the rule of law within that system help to safeguard
Australia from corruption and provides fundamental protections for human
rights.
Australia has a federal
system with three layers of government; Federal, State and local. This paper
focuses on the federal level of government. The Westminster system provides for
responsible government. Under the Westminster system, Ministers are elected
officials who are answerable to Parliament. Australian Government Ministers are
constitutionally responsible for the departments of state and statutory
authorities within their portfolio and are also answerable to Parliament for
abuses which may occur within their areas of responsibility.
ACCOUNTABILITY AND TRANSPARENCY:
The Australian
Government’s approach to preventing corruption is based on the idea that no
single body should be responsible for corruption. Instead, the strong
constitutional foundation is enhanced by a range of bodies and government
initiatives that promote accountability and transparency. This strategy
addresses corruption in both the private and public sectors.
We see this distribution
of responsibility as a great strength in Australia’s approach to corruption
because it creates a strong system of checks and balances.Many aspects of the
private sector are regulated at the federal level. Key pieces of legislation
include the Corporations Act 2001, which governs the way in which corporations
can operate, and the Australian Securities and Investments Commission Act 2001,
which establishes the Australian Securities and Investments Commission (ASIC).
ASIC is an independent government body that is specifically tasked to enforce
and regulate company laws. The Australian Prudential Regulation Authority Act
1998 establishes the Australian Prudential Regulation Authority (APRA), which
oversees the Australian financial services industry. The Australian Taxation
Office also plays an important role in regulating the private sector.
Regulation of the public
sector is shared between the Federal and State / Territory governments. Several
States have independent anti-corruption commissions or police integrity bodies
(New South Wales, Queensland, Victoria, South Australia and Western Australia).
The Australian Government has established an independent Australian Commission
for Law Enforcement Integrity that has jurisdiction over the Australian Federal
Police (AFP) and the Australian Crime Commission (ACC). The AFP and the ACC
investigate serious crimes and have important roles in the fight against
corruption.
Australia has a
comprehensive system of administrative law that allows the public to scrutinise
government decisions. There are rights to seek review of administrative
decisions in various pieces of legislation, including the Australian
Constitution. Federal tribunals and other bodies have been established to deal
with the review of administrative decisions and actions taken by government
officials and the States and Territories have also established bodies to review
decisions made by their government officials. Some of these bodies are
specialised and deal with a limited range of decisions, while others have a
more general jurisdiction. Each jurisdiction has an independent ombudsman.
The establishment of
administrative review bodies is complemented by the Freedom of Information Act
1982 (FOI Act) which extends, as far as possible, the Australian community’s
right to access information that is in the possession of the Federal
Government. The FOI Act imposes a legal duty on federal agencies to provide
members of the public with access to government information, including the
official documents of Ministers, unless those documents fall within defined
classes of exemption. This allows the public to scrutinise government decisions
and encourages government accountability and transparency.
The Australian
Government has established a financial framework containing requirements about
financial governance, financial management and accountability. The management
and accountability of public money is addressed through the Financial
Management and Accountability Act 1997 (FMA Act). The FMA Act provides a
framework for the proper management of public money and public property,
including regulating the way in which public officials spend public money. The
Commonwealth Authorities and Companies Act 1997 (CAC Act) regulates the
Commonwealth authorities and companies who are legally and financially separate
from the Commonwealth. For Commonwealth authorities, the CAC Act contains
detailed rules on reporting and accountability and deals with matters such as
banking, investment and the conduct of officers. For Commonwealth companies,
the CAC Act contains reporting and other requirements in addition to the
requirements of the Corporations Act.
One of Australia’s key
strategies in the prevention of corruption is the requirement that public
officials behave appropriately and are held accountable for their actions. Each
State and Territory, as well as the Australian Government, has its own public
service with its own code of conduct.
Australia’s approach is
to promote ethical conduct rather than legislate detailed rules for compliance.
The Public Service Act 1999 (PS Act) establishes the Australian Public Service
(APS) and sets out guidelines for its management.
The PS Act, which
establishes the APS Values, articulates the culture and operating ethos of the
APS and provides a philosophical underpinning. Agency heads must uphold and
promote the APS Values and have systems in place to ensure that employees
understand and apply them. Leadership is important in articulating the role of
the Values and how they complement the agency’s vision and organisational
goals.
The PS Act also sets out
the APS Code of Conduct. The Code of Conduct specifies the standard of conduct
that is required of all APS employees. Agency heads and statutory office
holders are also bound by it. The heads of agencies play a key role in
promoting and enforcing the Code of Conduct and must put in place measures
directed at ensuring employees are aware of the consequences of breaching it.
If an employee does
breach the Code of Conduct, they can be subject to sanctions ranging from a
reprimand to reduction in salary or even dismissal. Some breaches of the Code
of Conduct may also be crimes which will attract criminal penalties.
The heads of agencies
play a key role in promoting and enforcing the Code of Conduct. Agency heads
must put in place measures directed at ensuring that employees are aware of the
Code of Conduct and of the consequences of breaching it. Agency heads must
establish procedures to determine when a breach has occurred. There are also
whistleblower provisions in the PS Act that prohibit the victimisation of, or
discrimination against, any employee who reports a suspected breach of the Code
of Conduct.
The Australian Public
Service Commission is the government agency responsible for the future
capability and sustainability of the APS. The Public Service Commissioner’s
functions include:
• Promoting the APS Values and Code of
Conduct
• Conducting inquiries, evaluations and
reviews of people-management practices
• Supporting and coordinating APS-wide
training and career-development opportunities in the APS
• Contributing to, and fostering leadership
in, the APS, and
• Reporting
annually to Parliament on the state of the Service.
As this brief survey
shows, there is a wide range of bodies and initiatives to promote
accountability and transparency. This is a key element in Australia’s
anti-corruption strategy.
CRIMINALISATION OF CORRUPTION:
Australia has a strong
legislative regime criminalising corrupt behaviour. Australia also has
strategies in place to ensure that these laws are understood and enforced.
Corruption offences cover a very broad range of crimes, including bribery,
embezzlement, nepotism and extortion. for this reason Australia’s corruption
offences are not contained in any single act of parliament. instead, different
types of corruption are dealt with in different pieces of state / territory and
federal legislation. at the federal level, for example:
• Domestic bribery and foreign bribery
offences are contained in the criminal code act 1995
• Dealing in proceeds of crime is an offence
under the criminal code act 1995
• Obstruction of justice is criminalised in
the crimes act 1914
• Offences for improperly dealing with
public money are covered by the Financial Management and Accountability Act,
1997 and the Commonwealth Authorities and Companies Act, 1997, and
• Breach of duties as a director of a
company is dealt with by the Corporations Act 2001.
In Australia, as is evident from R. v. White[1]
as far back as in 1875, notwithstanding the operation of Article 9 of the Bill
of Rights, 1688, the Supreme Court of New South Wales held that an attempt of
bribe a Member in order to influence his vote was a criminal offence at Common
Law. The decision was approved by the
highest court of that country in R. v.
Boston[2]. Besides, Section 79-A of the Australian
Crimes Act, 1914 makes it an offence for Members of the Australian Parliament
to accept or be offered a bribe. In R.
v. Bunting[3] Wilson, C. J. held that
bribing Members of the Legislature to vote out the incumbent Government was an
indictable offence of bribery at Common Law and the court and not the
legislature has jurisdiction to try the said offence.
