Following a public consultation and consideration of submissions, in October 2017, the committee tabled its report to the Legislative Assembly. The report contained 79 recommendations which were translated into two pieces of legislation: the Anti-Corruption and Integrity Commission Bill 2018 (the Bill) introduced by Leader of the Opposition, Mr Alistair Coe MLA, and the ACT government’s Exposure Draft for the Integrity Commission Bill 2018.

Although the bill gave effect to all the 79 recommendations – unlike the Exposure Draft which agreed in whole or in part with some of the 79 recommendations – in its recent report of October 2018, the committee has recommended that the Legislative Assembly should work with the Exposure Draft, not the Bill. The committee is of the view that the Exposure Draft is easier to work with, especially for incorporating its revised recommendations.

What the issues are

Before the Exposure Draft is tabled as a bill, the ACT government would need to adopt a broad definition of “corrupt conduct” and include it in the bill. The structure of the commission would also have to be clarified, along with the process of gathering and use of evidence.

Further, there are three main issues which have been the subject of much discussion and scrutiny that are yet to be resolved. These are the issues of retrospectivity, the inclusion of the ACT Police and the commission’s ability to hold public hearings.

Retrospective investigation

Retrospective investigation is particularly important in the context of the recent findings by the ACT auditor general. The dealings around the Dickson land swap deal with the Tradies, including loss of important documents, and the controversial land purchases by the Land and Development Agency, highlight the importance of retrospective powers to be vested with the commission so that it may get to the bottom of these issues.

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As the ACT was administered by the Commonwealth government prior to 1989, limiting the commission’s retrospective powers to 1989 is one option – any matter prior to 1989 would fall within the jurisdiction of the Commonwealth. At the same time, investigating conduct that happened so far back in time may be difficult, especially in terms of availability of evidence and witnesses. In this regard, limiting the scope of the commission’s retrospective powers to a later date is preferable.

Inclusion of ACT Police

Another key issue is whether the ACT Police should fall under the oversight of the commission.

Contrary to the committee’s recommendations, the ACT Police has suggested that its inclusion under the commission’s investigative powers would create duplication and complexity, given that the Australian Commission for Law Enforcement Integrity, the Commonwealth Ombudsman and the Australian Federal Police’s (AFP) own internal professional standards body, already have the power to investigate complaints of misconduct or corruption made against ACT Police.

Despite the committee’s recommendations and the concerns raised by the ACT Police, a bigger hurdle for including the ACT Police is that it would have to be done with the agreement of the AFP, as the ACT Policing comes under the portfolio of the AFP.

Public hearings

While the bill set out public hearings as the default position, the Exposure Draft provides that whether an investigation should be conducted in public or private is to be decided by the commission weighting demonstrable public interest against any countervailing interests in confidentiality and privacy. The committee has accepted this narrow approach of the Exposure Draft, despite the success of public hearings as the default position in other jurisdictions.

Opinion

It would be interesting to see how the ACT Government amends the Exposure Draft to give affect to the committee’s recommendations of October 2018. Further, resolving the issue of retrospectivity will be of particular interest to the people of the ACT.

In the past, the emergence of controversial issues, such as the Dickson land swap deal, has continuously undermined the community’s confidence in those who make such decisions.

As the commission takes shape, it will be important for the community to be kept informed of its progress and how issues, such as retrospectivity, are being resolved so that proper scrutiny is given to decisions that undermine the community’s expectations and confidence, both past and future.

Arthur Marusevich is a lawyer based in Canberra. He uses his five-language skills to help people from disadvantaged backgrounds. Having written his first book, Arthur is an aspiring novelist and aims to publish one novel a year.