Introduction
Australia’s democratic framework, though historically stable, is currently challenged by significant issues of corruption and insufficient protections for human rights. The establishment of the National Anti-Corruption Commission (NACC) in 2023 marked a pivotal advancement in addressing federal corruption; however, its structural and operational deficiencies – especially in comparison to the New South Wales Independent Commission Against Corruption (ICAC) – hamper its effectiveness. Additionally, as the only Western democracy lacking a national Bill of Rights, Australia leaves its citizens vulnerable to potential violations of their fundamental rights. This post argues for the urgent need for a robust NACC, one that is reformed to incorporate the best practices of ICAC, alongside the establishment of a statutory Bill of Rights to protect essential freedoms. By examining the NACC in relation to ICAC, exploring international human rights frameworks, and illustrating their complementary functions, we emphasise the necessity of these reforms in restoring public trust, enhancing accountability, and aligning Australia with global standards.
Inadequacies of the NACC: Background and Context compared to ICAC
The NACC, created under the National Anti-Corruption Commission Act 2022, commenced operations on July 1, 2023, as Australia’s inaugural federal anti-corruption agency. It investigates serious or systemic corrupt conduct within the Commonwealth public sector, including parliamentarians, public servants, and contractors. This establishment was a response to a notable decline in public trust, as evidenced by Australia’s drop from 7th to 18th on the Corruption Perceptions Index between 2012 and 2022, alongside scandals such as the Robodebt crisis. However, the NACC’s design has faced criticism for not meeting best practice standards, particularly when juxtaposed with the ICAC, which has been operational since 1988. The transparency and effectiveness of ICAC underline the shortcomings of the NACC, necessitating reforms to bolster its mandate.
1. Public Hearings: Secrecy vs. Transparency
A major flaw in the NACC is its restrictive approach to public hearings. These are permitted only in “exceptional circumstances,” which prioritises private investigations over transparency. This lack of openness has drawn criticism from organisations like the Australia Institute and Transparency International, particularly following the NACC’s controversial decision not to pursue six individuals referred by the Robodebt Royal Commission, leading to over 1,200 complaints. In contrast, ICAC routinely conducts public hearings when deemed in the public interest, as exemplified in high-profile cases involving former NSW Premier Gladys Berejiklian and Eddie Obeid. The transparency of ICAC fosters accountability and deters misconduct through public exposure, a model that the NACC should emulate to rebuild trust.
2. Definition of Corrupt Conduct
The NACC’s mandate is narrowly defined to “serious or systemic” corrupt conduct, excluding less severe but still harmful acts, such as minor conflicts of interest. ICAC, on the other hand, broadly defines corrupt conduct as any action that “adversely affects” the honest or impartial exercise of public functions. This broader scope allows ICAC to investigate a wide range of misconduct, from local council favouritism to systemic abuses. For instance, ICAC’s investigations into small-scale resource misuse within councils would likely fall outside the NACC’s jurisdiction, limiting its preventative impact. A broader definition, similar to that of ICAC, would enhance the NACC’s effectiveness.
3. Oversight and Independence
ICAC benefits from a more robust oversight structure compared to the NACC. The NSW Parliament’s Committee on ICAC includes cross-party representation and operates transparently, providing public reports. The ICAC Inspector, an independent officer, investigates complaints against the Commission, ensuring accountability, as evidenced by a 2016 review of ICAC’s conduct. Conversely, the NACC’s Joint Committee lacks a non-government majority, raising concerns about potential political interference, especially considering its jurisdiction over federal politicians. The NACC’s Inspector operates with limited transparency and resources, as highlighted by the Centre for Public Integrity. Strengthening oversight, following ICAC’s model, is crucial for ensuring the NACC’s impartiality.
4. Investigative Powers and Scope
While both agencies possess coercive powers (such as search warrants and compelled testimony), ICAC’s broader mandate allows it to investigate any public official or private entity influencing public functions in NSW. Its retrospective powers are less constrained, enabling probes into historical misconduct, such as Obeid’s dealings spanning decades. The NACC’s retrospective powers are limited to conduct occurring after its establishment unless referred, and its cautious approach to Robodebt referrals indicates a reluctance to tackle sensitive cases. ICAC’s ability to make findings of corrupt conduct, even without criminal prosecution, contrasts with the NACC’s dependence on referrals to the Australian Federal Police, which can delay justice. The NACC should adopt ICAC’s proactive and flexible investigative approach.
5. Resources and Operational Capacity
ICAC operates with an annual budget of approximately $40 million and employs around 130 staff, sufficient for its state-level mandate. The NACC, with a broader federal jurisdiction, received $66 million and has 200 staff, but faced over 1,200 referrals within its first 100 days, overwhelming its capacity. ICAC’s efficiency, developed over decades, allows it to manage high caseloads effectively, as demonstrated by its simultaneous investigations of multiple MPs in the 2010s. The NACC’s backlog raises concerns about delays, which could further erode public trust. Increased funding and staffing, aligned with ICAC’s operational model, are essential for the NACC to manage its workload effectively.
6. Public Perception
ICAC’s public hearings and high-profile investigations have cemented its reputation as a fearless anti-corruption body, despite occasional controversies. Its transparency has fostered trust among the public in NSW. Conversely, the NACC struggles with perceptions of ineffectiveness due to its secretive processes and cautious decisions, such as declining to investigate Robodebt. ICAC’s visible impact contrasts sharply with the NACC’s low profile, which limits its deterrent effect.
Reforming the NACC
To evolve into a robust institution, the NACC should adopt the strengths of ICAC:
• Lower the threshold for public hearings to allow them when deemed in the public interest.
• Broaden the definition of corrupt conduct to encompass minor misconduct.
• Enhance oversight by ensuring a non-government majority on its committee and establishing a transparent Inspector.
• Expand retrospective and proactive powers to address both historical and emerging corruption.
• Increase funding and staffing to align with its federal scope.
A reformed NACC would not only deter corruption but also restore public confidence. However, combating corruption is only one aspect of governance; human rights violations necessitate the establishment of a federal Bill of Rights to complement anti-corruption efforts.
Australia’s Human Rights Gap: The Case for a Federal Bill of Rights
Australia stands as the only Western democracy without a national Bill of Rights. While the Constitution provides limited protections (e.g., Section 116 regarding religion), and some rights are implied, such as political communication (Lange v Australian Broadcasting Corporation [1997]), these protections are narrow and insufficient. State charters in Victoria, Queensland, and the ACT do not extend to federal laws, leaving significant gaps in protections against abuses, such as those related to metadata retention or the detention of asylum seekers. This absence exposes Australians to potential rights violations and undermines Australia’s credibility on the global human rights stage.
Why a Bill of Rights is Essential
1. Protecting Fundamental Freedoms
A Bill of Rights would enshrine essential rights such as free speech, privacy, and equality, enabling citizens to challenge government overreach. Historical abuses, like the 1951 ban on the Communist Party, and contemporary policies, including broad detention powers under counter-terrorism laws, underscore the necessity for judicial scrutiny. A rights framework would ensure that laws are proportionate, striking a balance between security and liberty.
2. Promoting Equality and Social Justice
Addressing systemic inequalities, particularly those faced by Indigenous Australians who experience over-incarceration and health disparities, necessitates legal protections. A Bill of Rights could tackle discrimination and support Australia’s obligations under the International Covenant on Civil and Political Rights. Provisions for gender, disability, and sexual orientation rights would foster a more inclusive society.
3. Enhancing Global Standing
As a signatory to major human rights treaties, Australia’s lack of a Bill of Rights undermines its international advocacy efforts. Establishing a national framework would align Australia with global standards, thereby strengthening its moral authority on human rights issues.
Exploring Human Rights Models
Australia can learn from various international models in designing a Bill of Rights, each offering valuable insights into structure and implementation:
1. United Kingdom: Human Rights Act 1998
The UK’s Human Rights Act (HRA) incorporates the European Convention on Human Rights, allowing courts to declare laws incompatible with rights without invalidating them. This “dialogue model” preserves parliamentary sovereignty, making it suitable for Australia’s legal traditions. The HRA has challenged surveillance and detention policies, setting a precedent for balancing rights with governance. Its statutory nature allows for adaptability in the Australian context, albeit with domestic oversight replacing European mechanisms.
2. New Zealand: Bill of Rights Act 1990
New Zealand’s Bill of Rights Act (BORA) is a statutory framework protecting civil and political rights, such as freedom of assembly and non-discrimination. While courts interpret laws in accordance with BORA, they cannot strike them down, which aligns with parliamentary sovereignty. BORA has supported Māori rights claims, but its lack of enforceability limits its overall impact. Australia could adopt BORA’s simplicity while incorporating remedies like compensation for enhanced enforcement.
3. Canada: Charter of Rights and Freedoms 1982
Canada’s Charter is constitutional, allowing courts to invalidate laws that violate rights, subject to a “notwithstanding clause” for parliamentary override. The Charter has advanced equality issues (e.g., same-sex marriage) and limited governmental overreach. However, its entrenchment may conflict with Australia’s preference for legislative flexibility. A statutory model inspired by Canada’s rights scope may be more feasible.
4. South Africa: Bill of Rights 1996
South Africa’s Bill of Rights, integrated into its Constitution, encompasses civil, political, and socio-economic rights (e.g., access to healthcare). Courts enforce these rights, addressing systemic inequalities. While ambitious, the inclusion of socio-economic rights may be contentious in Australia. A hybrid model focusing on civil and political rights could be more practical.
Recommended Model
A statutory Bill of Rights that blends elements from the UK’s HRA and New Zealand’s BORA would be ideal for Australia. This model would:
• Protect core rights (e.g., free speech, equality, privacy).
• Allow judicial declarations of incompatibility, prompting parliamentary review.
• Include remedies such as compensation for enforceability.
• Preserve parliamentary sovereignty, addressing concerns about judicial activism.
This approach strikes a balance between rights protections and Australia’s legal traditions, drawing on international best practices.
Complementary Roles of a Robust NACC and a Bill of Rights
Corruption and human rights violations erode democracy in different ways but share a common consequence: the erosion of public trust. A corrupt official misusing funds undermines institutional integrity, while policies that restrict free speech violate fundamental freedoms. A robust NACC, reformed to match ICAC’s effectiveness, can address corruption, while a Bill of Rights can prevent rights abuses, creating a dual defence against the misuse of power.
Synergistic Functions
1. Dual Accountability
A reformed NACC could investigate corrupt practices like pork-barrelling, while a Bill of Rights could challenge discriminatory outcomes. For example, if public funds are misappropriated to benefit specific groups, the NACC could probe the corruption, while the Bill of Rights could address violations of equality, ensuring scrutiny of both processes and impacts.
2. Protecting Whistleblowers and Activists
Whistleblowers who expose corruption rely on NACC referrals but face retaliation without adequate rights protections. A Bill of Rights that guarantees free speech and protection from reprisal would complement NACC safeguards, ensuring safe disclosure. Likewise, activists challenging corrupt policies could invoke a Bill of Rights to defend their rights to protest, while the NACC ensures the integrity of policies.
3. Restoring Public Trust
A transparent NACC, modelled after ICAC, would help rebuild trust through visible anti-corruption efforts, addressing public frustration over issues like Robodebt. A Bill of Rights would further enhance trust by signalling a commitment to fairness and enabling rights-based challenges to policies that violate dignity or equality.
4. Addressing Systemic Issues
The NACC targets systemic corruption, such as the misuse of public funds, while a Bill of Rights could tackle systemic rights violations, such as the over-incarceration of Indigenous peoples. Together, their combined effects would foster a culture of accountability, deterring misconduct and empowering citizens.
Countering Criticisms
Critics may contend that reforming the NACC and enacting a Bill of Rights are costly or redundant. However, the distinct roles of these frameworks – reactive anti-corruption versus proactive rights protection – justify a dual approach. Streamlined reforms, such as integrating NACC oversight with existing committees and adopting a straightforward statutory Bill of Rights, can minimise costs while maximising impact.
Conclusion
The integrity of Australia’s democracy hinges on effectively addressing corruption and safeguarding human rights. While the NACC represents a crucial step forward, it remains inadequate compared to ICAC, with its restrictive public hearing rules, narrow mandate, weak oversight, and insufficient resources. Reforming the NACC to adopt ICAC’s transparency, flexibility, and efficiency is essential. Concurrently, Australia’s lack of a federal Bill of Rights leaves citizens vulnerable to rights abuses, underscoring the need for a statutory framework inspired by the UK’s HRA and New Zealand’s BORA. Together, a robust NACC and a Bill of Rights would tackle corruption and rights violations as interconnected threats, thereby restoring public trust and strengthening governance. It is imperative that Australia acts swiftly to implement these reforms, aligning with global standards and safeguarding its democratic future.
References
• Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
• National Anti-Corruption Commission Act 2022 (Cth).
• Independent Commission Against Corruption Act 1988 (NSW).
• National Anti-Corruption Commission (Australia) – Wikipedia.
• The National Anti-Corruption Commission – The Australia Institute.
• NACC needs urgent reform – The Centre for Public Integrity.
• Transparency International Australia – Corruption Perceptions Index.
• United Kingdom Human Rights Act 1998.
• New Zealand Bill of Rights Act 1990.
• Canada Charter of Rights and Freedoms 1982.
• South Africa Constitution 1996.