Administrative Law Oversight and a
National Integrity System for Government
Putting Administrative Law Back into Integrity, and
Putting the Integrity Back into Administrative Law
Dr A J Brown
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative
Law: Protection of Individual
and Community Interests
Surfers
Paradise Marriott Resort
22-23 June 2006
Dr A J Brown
Senior Lecturer, Griffith Law School
Senior Research Fellow, Socio-Legal Research Centre
Visiting Fellow, Australian National University College of Law
Ph +61 (0)7 5552 7737 Gold Coast (0)2 6125 0092 ANU
Mobile +61 (0)414 782 331 Email A.J.Brown@griffith.edu.au
“Putting Administrative Law
Back into Integrity, and
Putting the Integrity Back
into Administrative Law”
1. Introduction
What role does administrative law play in the pursuit of public
integrity? And how confident can we be that it is currently performing its
role?
The answer to the first of these questions might seem axiomatic – of
course, administrative law is a fundamentally important field of societal
regulation and professional practice, whose entire raison d’etre is the
proper regulation of relationships between government and the community.
Indeed administrative law, just as much as if not more than constitutional law,
could be better described as ‘the law of public accountability’. If we
restyled them thus, undergraduate administrative law courses might not even
need to be compulsory to sustain student interest.
But is public ‘accountability’ the same as public ‘integrity’,
especially when defined in legal terms; and even if the law of public accountability
is vital to public integrity, how do we ensure that it is up-to-date and doing
all that it should be doing?
This paper suggests some answers to these questions, reached as a
result of a recent research collaboration between several Australian universities
and Transparency International Australia – the National Integrity System
Assessment. This assessment took place over five years, with funding from the
Australian Research Council, and was released in draft form at the 4th
National Investigation Symposium held by the NSW Ombudsman, Independent
Commission Against Corruption and Institute of Public Administration in
November 2004. The final report (Brown et al 2005) was launched by Professor
John McMillan on UN Anti-Corruption Day, 9th December, in 2005.
This paper draws heavily on that report and its underlying research.
The first part of the paper restates some of the reasons for seeking
to describe and assess ‘national integrity systems’, and the approaches used in
doing so. The second part then reviews some key practical recommendations of
the assessment, particularly those relating to our administrative law
frameworks. These confirm the centrality of administrative law to our nation’s
integrity systems, and but also the need for those concerned with public
integrity to think more broadly about how administrative law can, does and
should interact with other elements of our integrity system.
The third part of the paper reinforces this by repeating some
questions about the conceptual differences but also key relationships between
ideas of ‘accountability’, ‘responsibility’ and ‘integrity’ in our society.
These questions provide ongoing food for thought for lawyers, not just those
interested in fine definitional distinctions, but particularly as a reminder to
administrative lawyers to remain conscious of, and perhaps even assertive in
promoting, the integrity-related dimensions of their role
2. Integrity Systems: What Are They,
and Why Assess Them?
Australia’s ‘National Integrity Systems’ are the sum total of institutions, laws, procedures, practices and attitudes
that encourage and support integrity in the exercise of power in modern
Australian society (Brown et al 2005: 1). Integrity systems function to
ensure that power is exercised in a manner that is true to the values, purposes
and duties for which that power is entrusted to, or held by, the institutions
and individual office-holders concerned.
The sense of ‘truth’ that
runs through this rather expansive definition relates back directly to the
meanings we give to ‘integrity’ in our society – not just in relation to the
personal integrity of individuals, but also the institutions through which most
political and economic power is exercised. The word ‘integrity’ is derived
from the Latin integritas, meaning ‘unaffected, intact, upright,
reliable’; the same root has given us ‘integer’, the mathematical term for a
‘whole’ number as opposed to a fraction (Preston in KCELJAG & TI 2001: 1;
Uhr 2005: 194). ‘Integrity’ also operates as a conceptual opposite to
‘corruption’, which means decay, deterioration or perversion from an original
or ‘whole’ state; in physical terms, corruption is ‘the destruction or spoiling
of anything, especially by disintegration…’ (Oxford English Dictionary;
Heidenheimer & Johnson 2002: 6-9).
When it comes to our
society’s major institutions, and the individuals that constitute them, how do
we judge power as being exercised in an ‘upright’, ‘whole’, ‘uncorrupted’
manner? It is by reference to the values, purposes and duties for which that
power is entrusted to, or held by, the institutions and individual
office-holders concerned. Clearly, in modern societies such judgements are
arrived at and acted upon in a myriad of ways – from institutions, laws, and
procedures to social practices and attitudes. All these many and varied
ingredients go to make up our integrity systems.
The definition of integrity, and its relation with other
key terms in other legal and policy lexicon will be further discussed at the
end of this paper. The term ‘National Integrity System’ has an even more
specific and recent origin, coined by the foundation managing director of
Transparency International, Jeremy Pope, to describe a changing pattern in
anti-corruption strategies in which it was recognised
that the answer to corruption did not lie in a single institution, let alone a
single law (Pope 1996; 2000; see also Langseth
et al 1997; 1999). Pope’s graphical metaphor
for the national integrity system is an ancient ‘Greek temple’ (Figure 1).
Figure 1.
Transparency International’s NIS Greek Temple (Pope 2000)
This image of a ‘typical’ national integrity depicts the types of
institutions commonly found in the integrity system of contemporary liberal democracies
(the ‘pillars’), but also captures how different elements of an integrity
system interact in terms of ‘horizontal’ or ‘mutual’ accountability. As Pope
(2000: 36) describes:
the pillars are
interdependent but may be of differing strengths. If one pillar weakens, an
increased load is thrown onto one or more of the others. If several pillars
weaken, their load will ultimately tilt… crash to the ground and the whole
edifice collapse into chaos.
The concept of ‘mutual accountability’ captured in
this image is especially recognisable to lawyers, because its archetypal example remains the Anglo-European constitutional
‘separation of powers’ between legislative, executive and judicial branches of
government (Schedler et al 1999; Pope 2000: 24-26). In the concept of a national integrity system, this principle
extends through a wide variety of integrity
institutions and processes used to hold each other accountable, in a network
fashion as well as operating on agencies and individuals through traditional
top-down supervision. In many newer constitutions, the
recognition of an increasing range of integrity institutions such as auditors
and ombudsmen exemplify the trend. The same concept is evident in the
suggestions of Spigelman CJ, that a range of core public sector integrity
institutions in Australia should be considered a new ‘fourth branch’ of
government:
… there have been a number of candidates
for a ‘fourth branch’ designation over the years. The number does not matter.
The idea does. The primary basis for the recognition of an integrity branch as
a distinct functional specialisation, required in all governmental structures,
is the fundamental necessity to ensure that corruption, in a broad sense of
that term, is eliminated from government. However, once recognised as a
distinct function, for which distinct institutions are appropriate, at a level
of significance which acknowledges its role as a fourth branch of government,
then the idea has implications for our understanding of constitutional and
legal issues of broader significance (Spigelman 2004).
Whether semi-constitutionalised in this fashion, or
left as a more diffuse network that is indeed broader than simply the
government sector, the conception here is of systems in which vertical lines of accountability turn into ‘a circle, or
criss-crossing pattern’ between multiple integrity guardians; and in which the
associated problem of ‘how to guard the guardians’ is also solved by the fact
that ‘every member is accountable to at least one other, or possibly several
others’ (Mulgan 2003: 232). From a political science perspective, this network
of accountability relationships has also been described as a ‘lattice of
leadership’, which ‘implies that public trust in government is more reliably
placed when the various institutions of government share the task of
self-regulation’ (Uhr 2005: 155). Figures 2a&b apply
these concepts graphically, drawing on the work of Australian regulatory
specialist John Braithwaite (1998).
However a crucial feature of modern integrity systems
in practice, is that their relationships are defined by more than simply mutual
accountability. In addition to this type of constitutional relationship,
framed as a ‘separation’ of power, we rely on many key integrity institutions
to collaborate and cooperate, and we expect them to act coherently in the
overall task of helping ensure the appropriate exercise of power. Integrity
systems are also not limited to the ‘core’ institutions we might most readily recognise
as engaged in the task, but to a diversity of strategies, measures and
requirements that are devolved or ‘distributed’ throughout all
institutions. Consequently, a total picture of the the interrelations and
interdependencies that increasingly define our integrity systems would be
incredibly intricate. Figure 3 suggests that if there is a suitable graphical
metaphor for this, it is probably not a neat human-built structure metaphor,
but the messier natural metaphor of a bird’s nest (see Sampford et al 2005).
Figure 2a.
Formal Models of Two Conceptions of Trust
(Braithwaite 1998: 354)
Figure 2b. A
Model of Mutual Accountability (Brown et al 2005: 16)
Figure 3. Integrity Systems ‘Bird’s Nest’ (Sampford et al 2005: 105)
|
|
 |
Turning from concepts to practice, the motivation for a more
holistic appreciation of the dimensions of integrity systems lies with
real-world problems – in particular, the struggle that many countries continue
to have in ensuring that their integrity frameworks achieve their stated
purposes. Australia’s National Integrity Systems Assessment (NISA) came about
as part of an international effort to find more appropriate methodologies for
reviewing the effectiveness of integrity reforms in particular, and governance
reforms generally, across a wide range of countries. This effort involves a
diversity of international agencies, from government-sponsored efforts by the
World Bank and OECD, to those of non-government organisations such as
Transparency International. Prior to the Australian NISA project, most of
these focused on some means of analysing the performance of a similar range of
institutional actors and practices (Table 1). Most were also quite limited, if
not by a range of cultural and socio-political assumptions underpinning this
form of comparative political analysis, then by their typically default to the
identification of problem areas by contrasting the theory or intention of
integrity systems, with their reality or practice. This approach can be
unhelpful, because theory or intention may be based on ‘ideals’ which are
inherently difficult to attain, and which do not themselves support definitive
judgements as to when they have been compromised too much; nor indeed when the
theory or intention may itself be wrong (Brown & Uhr 2004).
Table 1. Common Elements of Western Integrity & Governance
Assessments
|
Assessment
model/approach
|
|
National Integrity Systems
|
OECD Anti-Corruption Mechanisms
|
OECD Ethics Infrastructure
|
Public Integrity Index
|
Governance Matters
|
|
Transparency International
|
OECD, Paris
|
Centre for Public
Integrity (US)
|
World Bank
|
|
Pope 1996, 2000; Doig &
McIvor 2003
|
OECD 1996
|
OECD 1999,2000
|
Camerer 2004
|
Kaufman 2003
|
|
Key elements to be assessed
|
|
Legislature
|
Oversight by legislature
|
Political will
|
Electoral & political
processes
|
Political stability
|
|
Executive
|
Branches of government
|
|
Judiciary
|
Specialised bodies to prosecute
corruption
|
Effective legal framework
|
Rule of law
|
|
Auditor-General
|
Supreme financial audit authority
|
Efficient
accountability mechanisms
|
Oversight and Regulatory
Mechanisms
|
|
|
Ombudsman
|
Ombudsman
|
|
Watchdog Agencies
|
Anti-corruption regulation
|
Control of corruption
|
|
Corruption investigation bodies
|
Ethics coordinating body
|
|
Public Service
|
Human resource mgt procedures
|
Supportive public service conditions
|
Administration and
Civil Service
|
|
|
Financial mgt controls
|
|
|
Organisational mgt controls
|
Regulatory quality
|
|
Guidance & training for public officials
|
Workable codes of conduct
|
|
Professional socialisation
mechanisms
|
|
Media
|
Transparency mechanisms
|
|
Civil Society, Public Information and Media
|
Voice & accountability
|
|
Civil Society
|
Active civil society
|
|
Private Sector
|
|
|
|
|
|
International Actors
|
Figure 4. Global Integrity Report (Camerer 2004)
Figure 4 perhaps typifies
the output of some previous international assessments, using a range of expert
analyses to score a range of institutions and practices with a view to
comparison in index form. In this case the sponsor was the Washington-based
Centre for Public Integrity. The meaning, accuracy and utility of this index
is perhaps best left to the imagination – suffice to say that Italian public
integrity advocates find it as amusing for their country to be ranked equally
with Australia, as do Australian ones.
After considerable investigation and
debate, the Australian NISA project decided to abandon any particular
institutional template as the starting point for the assessment, and instead
describe the institutional framework in the relevant jurisdictions from the
‘bottom-up’. As well, rather than by comparing reality with theory, the
analysis was structured around three key themes arising from a number of
sectoral studies and other similar evaluations: the consequences,
capacity and coherence of the major systems
involved. These three themes worked together as interrelated ‘lenses’ on the
structure, operations and effectiveness of Australia’s integrity systems,
providing a clearer platform for the identification of priority reforms. By
analysing ‘consequences’, the assessment was able to review and pool existing
efforts to directly measure the impacts or outputs of key integrity-related
policies and institutions. By analysing ‘capacity’, the assessment tried to
identify clear structural strengths and weaknesses in the ability of key
policies and institutions to achieve their intended goals, as well as
undertaking comparative analysis of certain obvious capacities (such as
financial and human resources in like institutions) between different
jurisdictions. By analysing, ‘coherence’, the assessment was able to focus on
existing strategies and possible new options for achieving the type of mutual
accountability, policy coordination and operational cooperation depicted in the
graphical models above.
Perhaps the best compliment paid
to this approach, was its adoption by the OECD Public Governance Committee in
its report ‘Measures for Promoting Integrity and Preventing Corruption: How to
Assess?’ compiled during the Australian assessment with
direct input from the Australian team (OECD 2004). Table 2 below shows the
basic framework and criteria around which the OECD now recommends countries
could assess their public integrity systems, and correlates these criteria with
the NISA assessment theme approach.
Table 2.
OECD Integrity System Assessment Criteria &
NISA Assessment Themes
|
OECD Criteria Checklist (OECD
2004:10)
|
NISA Themes
|
|
QUESTIONS
|
CRITERIA
|
|
|
Are integrity policy
instruments (e.g. legal provisions, code of conduct, institutions,
procedures) in place?
|
Formal existence
of components of policy instruments.
|
NISA Stage 1 – Scoping
|
|
Are integrity policy instruments capable of
complete functioning (realistic expectations, resources and conditions)?
|
Feasibility of specific policy
instruments.
|
NISA Stage 2 -
Capacity
|
|
Did the integrity policy instrument achieve its
specific initial objective(s)?
|
Effectiveness of specific policy
instruments.
|
NISA Stage 2 - Consequences
|
|
How significantly have policy instruments
contributed to meeting stakeholders’ overall expectations (e.g. actual impact
on daily behaviour)?
|
Relevance, the contribution of
specific policy instruments and actions to meet stakeholders’ overall
expectations.
|
|
Do the various elements of integrity policy
coherently interact and enforce each other, and collectively support the
overall aims of integrity policy?
|
Coherence of measures,
relationship with other elements of the policy.
|
NISA Stage 2 -
Coherence
|
3. Key Recommendations from the
National Integrity System Assessment
What specific conclusions emerged from this rather large canvas?
These are set out in the report in the form of 21 recommendations, summarised
in the box below.
It is important to note that these recommendations were not limited
to the public sector, and that the framework appeared to prove sound for also
examining integrity systems in the business and civil society sectors in
further depth, as well as inter-sectoral systems. Nevertheless the bulk of
firm recommendations did relate primarily to the public sector. This is
particularly the case for recommendations relating to ‘core’ integrity
institutions, i.e. those making up the major public sector regulatory agencies,
which formed the first group of recommendations. The second group of
recommendations relate more to distributed integrity institutions, and include
principles that are sometimes more sector-blind. Figure 5 below provides an
indicative schema for where ‘core’ and ‘distributed’ integrity institutions are
found in an Australian institutional context.
Many of the 21 recommendations relate directly or indirectly to the
role of administrative law in our societal efforts to pursue public integrity.
Indeed across the board, the assessment confirmed the need for legal strategies
– and different forms of legal strategies, e.g. administrative,
employment-related and criminal – to be more effectively coordinated with
leadership and management strategies for maintaining ethical standards in the
life and work of institutions. Nevertheless it is perhaps most useful to focus
on those seven recommendations most directly relevant to the role and practice
of administrative law, shaded in the box below.
Figure 5. Key Integrity
Institutions by Sector & Level (Brown et al 2005: 12)
Recommendation 1 – Commonwealth integrity & anti-corruption
commission
The Commonwealth
Government’s proposed new independent anti-corruption agency to be a
comprehensive lead agency operating across the Commonwealth, not just a few
agencies.
For some time, specialist anti-corruption investigatory and
resistance-building capacities were regarded as interesting state government
experiments in Australia. Now they are often accepted as de rigeur,
both domestically and internationally – a significant piece of the integrity
architecture, even though not providing a total response to corruption risks in
their own right. We only need to remember the complete, as well as strictly
legal meanings of concepts such as ‘improper purpose’ and ‘bad faith’ to know
how intrinsically measures for detecting and remedying official corruption
interrelate with the public accountability goals of administrative law.
This recommendation reflects not only the results of a number of analyses
in the assessment itself, but the issues raised by a decision by the present
federal government to strengthen capacity in this area by establishing a new
‘independent national anti-corruption body’, taken during the life of the
project (Ruddock & Ellis 2004). This decision has now resulted in the Law Enforcement Integrity Commissioner Bill 2006 (Cth), introduced alongside the Law Enforcement (AFP Professional
Standards and Related Measures) Bill 2006 which is itself important for the
new relationship it sets out between the Commonwealth Ombudsman and Australian
Federal Police.
Both pieces of legislation were recently examined by the
Senate Legal and Constitutional Legislation Committee (Senate 2006). The
Committee noted and largely – in many cases, totally – endorsed the important
questions of integrity system design that hang over the Commonwealth’s plans,
set out in the NISA report (see also Brown & Head
2004, 2005; Brown 2005). While the creation of any new Commonwealth anti-corruption body is
the most significant reform to the framework of the Commonwealth’s core
integrity institutions in over 20 years, the current proposal is for the agency
to have only the Australian Federal Police and Crime Commission within its
jurisdiction. While consistent with earlier Australian Law Reform Commission
recommendations (ALRC 1996), this is inconsistent with the rhetoric surrounding
the relevant Ministers’ announcement, which presented the current frameworks in
NSW, Queensland and Western Australia as the model to follow (on this, see
table 3).
In the Senate Committee’s report, the Labor Opposition
and Australian Democrats have now taken the position that the Law Enforcement
Integrity Commission Bill should be expanded beyond law enforcement so as to
create an anti-corruption agency of general jurisdiction, rather than one
limited to two agencies. Most importantly, the Committee was unanimous in its
view that even if limited to law enforcement, the jurisdiction should be
expanded to include a wider group of agencies including the Australian Customs
Office, Australian Taxation Office, and Department of Immigration (Senate
Committee 2006: 27-28). The Committee also expressed a unanimous view that:
A
Commonwealth integrity commission of general jurisdiction is needed, and there
is an accountability gap that would be closed by such a body. While the
Committee considers that ACLEI – as currently proposed – needs to be created,
consideration should be given to developing such a body in the longer term.
While there remain several possible paths to this result, and an
obvious logic in dealing with these issues now rather than an indefinite point
in the future, the overall conclusion remains the same and is one clearly
supported by the assessment. For a variety of reasons set out more fully in
the report, there are signs that such an injection of anti-corruption capacity
is particularly overdue at the Commonwealth level, where enforcement capacity
has suffered a lack of comprehensiveness. In particular, the Commonwealth’s
current and proposed regimes would continue to rely on the Australian Federal
Police to oversight the handling of corruption in Commonwealth agencies, with
agencies themselves left to handle ‘non-corruption’ issues. The Senate
Committee disagreed with the Commonwealth Attorney-General’s Department, and
further agreed with the logic of the NISA recommendation, when it observed
there are ‘limits to the effective jurisdiction of the AFP in relation to
broader corruption or integrity issues that fall short of criminal behaviour’,
a ‘lacuna’ which ‘may not be adequately addressed by relying on agencies’
internal investigations or the Ombudsman’ (Senate Committee 2006: 26).
While this first recommendation was driven by considerations of
institutional and legal capacity to deal effectively with corruption risks at
the Commonwealth level, it has a consistency with other recommendations
emphasising the importance of a comprehensive approach to integrity in public
administration (e.g. recommendations 6 and 8). A comprehensive approach is one
in which legal and non-legal strategies combine, and in which the different
strategies of criminal law, the law of public sector employment and management,
‘values-based’ governance and administrative law all need to work in an
integrated fashion. The type of ‘lacunae’ identified by NISA, as confirmed by
the Senate Committee, confirm the need for such an approach, irrespective of
the particular legal starting point – criminal, administrative or
employment-based – from which one can approach the problem.
Any discussion about the creation or powers of executive ‘watchdog’
agencies prompts questions of their own accountability, as noted earlier. On
this issue of mutual accountability, the report deals separately with current
best practice in special parliamentary oversight arrangements for such
agencies, with special mention of the need for these to also take in the
Commonwealth Ombudsman (recommendation 3).
Recommendation 2 – Governance
review councils
Each Australian government to establish a
governance review council to promote policy and operational coherence between
core integrity institutions, and related functions.
This recommendation goes to the crucial issue of the overall
coherence of the modern public integrity systems of Australian governments, as
the number and business of core institutions becomes increasingly complicated.
Importantly, it is here that administrative law has both a lot to offer the
task of effective policy and operational coordination, and perhaps something to
learn.
When the assessment looked for concrete strategies for how modern
integrity systems maintained or sought to maintain any coherence, it found a
diversity of options. In Queensland, the modern system emerged from a
comprehensive reform program in which development of many key institutions was
linked through the principles articulated by the Fitzgerald Inquiry and
developed in more detail by the Electoral & Administrative Review
Commission (EARC). However, there was fragmentation between some reforms from
the outset, while others crept in at implementation (see Preston et al 2002).
The winding-up of the EARC pursuant to its ‘sunset’ provisions left no clear
institutional coordination mechanism. More recently, the challenge of better
policy and operational coordination has been met by an informal ‘Integrity
Committee’ comprising the Ombudsman, Auditor-General, Chair of the Crime &
Misconduct Commission, Public Service Commissioner, and parliamentary Integrity
Commissioner (Demack 2003; Parnell 2004).
In June 2005, in response to the NISA draft report, key Western
Australian integrity agencies formed a similar but more formal ‘Integrity
Coordinating Group’ (ICG), comprising the Ombudsman, Corruption and Crime
Commission, Auditor-General and Public Sector Standards Commissioner, with
terms of reference based on this recommendation, supported by an interagency
working party.
New South Wales tells a
particularly interesting story about the importance, and difficulty, of
maintaining coherence in the operation of multiple integrity bodies. The NSW
Government is alone among Australian governments in not possessing a
comprehensive public sector ethics framework (recommendation 8). For possibly
related reasons, one of the most significant efforts to coordinate the parallel
operations of many agencies, through creation of a ‘one stop shop’ public
interface called ‘Complaints NSW’ in 2001, foundered on technicalities which
were also clearly indicative of a lack of central government support (Brown et
al 2005: 87). The NSW public integrity system’s story
is more one of coordination despite any structural or institutional
support, than because of it.
The Commonwealth integrity system suffers its own
problems of fragmentation, including those noted above. At the same time,
however, it provides the nation’s strongest and most long-lasting mechanism for
maintaining policy and operational coherence within at least part of the
integrity system, in the form of the Administrative Review Council, established
by Part V of the Administrative Appeals Tribunal Act 1975 (Cth). So far
only one state has followed suit, almost 30 years later, with the Tasmanian
Administrative Review Advisory Council established in August 2004 (see www.tarac.tas.gov.au).
Administrative lawyers need little introduction to the Commonwealth body, which
includes the President of the Administrative Appeals Tribunal (typically also a
Judge of the Federal Court), Ombudsman, President of the Australian Law Reform
Commission, and up to 11 other members with extensive practice or knowledge in
industry, commerce, public administration, industrial relations or
administrative law. The purpose of the ARC was explicitly to maintain the
coherence of the ‘new administrative law’ at a time when this itself was made
up of a combination of mutually-supporting elements – namely the codification
and liberalisation of judicial review of administrative action, general-purpose
merits review tribunals, freedom of information, and the establishment of the
Ombudsman. The presence of the president of the ALRC on the ARC provides a
continuing reminder that maintaining the coherence and effectiveness of
administrative law is an ongoing process. Indeed if we were to add the
Auditor-General and the Public Service Commissioner to the ARC (in place of the
senior agency head or heads currently appointed), we would quickly have a body
which could help maintain our systems of public accountability not simply in
their legal dimensions, but more broadly.
It
may well be that key participants in the Commonwealth administrative law system
would not want to risk diluting the current focus and frequent good works of
the ARC. Nevertheless, this recommendation combines the lessons of the former
Queensland EARC and the long-term success of the ARC – indeed, its strategic
importance as a voice for coordinated approaches to public accountability – as
a basic model for the type of recognised, statutory coordination mechanism now
required to maintain an effective integrity system on a broader front. The roles
of such a council would include research, performance measurement,
capacity-building and capacity-sharing, as well as capacity to monitor
longer-term integrity trends and ensure coherence in development of new
integrity-related laws and institutions. Among the most important operational
issues are the public’s interest in more seamless and user-friendly complaint
services, outreach and community education, shared information, research and
intelligence, and better coordination of integrity policies at the ‘coalface’
of public sector management by better integrating and simplifying the diverse
accountabilities imposed on individual public servants by the integrity regime.
The model provided by the Administrative Review Council also provokes
some reflection on the extent to which developments in administrative law once
played a more general lead role in the evolution of our integrity systems, than
they might seem to play today. This is a question returned to below.
Recommendation
4 – Jurisdiction over corporatised, contracted & grant-funded services
Jurisdictions of public sector integrity
institutions to extend to any decisions or services flowing from an allocation
of public funds.
That all governments review the
traditional legislative methods for defining the jurisdictions of integrity
institutions, away from characterisations of decision-makers or
service-providers as ‘public’, ‘private’, ‘commercial’ or ‘corporatised’ and
towards increased discretion for integrity bodies to investigate and/or hear
any relevant matter involving any decisions or services flowing from an
allocation of public funds.
In an age of
corporatisation and ‘contracting out’, this recommendation needs little
explanation to the initiated. There is no question that whatever the benefits
of the contracting out of public services, in terms of efficiency and
responsiveness, the public expectation and need for integrity and
accountability in the delivery of those services remains undiminished. Even in
neo-classical economics, contracting-out poses alternative integrity challenges
due to increased agency risks and lengthened supply chains. However,
corporatised and out-sourced services since the late 1980s have been
characterised by significant accountability ‘gaps’, with public integrity oversight
– including the reach of administrative law remedies – halting at the point of
contracting-out for no other reason than the traditional delineation of
jurisdiction based on the legal character of the entity concerned, rather than
the nature of the power and discretion being exercised, the services being
delivered or the funds being expended. Even in the case of corporatised
entities such as government-owned corporations (GOCs), in fact, there is no
doubt that when it comes to the ‘fundamental choice’ needed on questions of
governance, accountability and ethical behaviour, ‘we must treat GOCs as if
they were public entities’ (Bottomley 2003). Increasingly, there is little
reason to differentiate between the basic integrity standards and strategies needing
to be employed by public and private service providers (see e.g. Demack 2003:
12).
The solution adopted by some jurisdictions
(e.g. NSW) has been to begin extending the jurisdictions of core public
integrity institutions, such as the Ombudsman, to include discretion to
investigate complaints into publicly-funded services regardless of provider.
While other responses exist, including industry-specific integrity mechanisms
(e.g. industry ombudsman’s offices), these responses do not provide universal coverage
of contracted services and particularly where industry-controlled, can appear
compromised. Such mechanisms also do not typically extend to programs funded
by government grants, rather than contract. This recommendation identifies the
need for a general reconsideration of the options for bringing our integrity
systems up to date with the changing structure of modern governance.
Recommendation 5 – Access to
administrative justice
National review of the availability of substantive
administrative law remedies to citizens aggrieved by official decisions.
That all governments join in a national
review of the current availability of substantive administrative law remedies
to citizens aggrieved by official decisions, recognising:
(i)
Partial, and often complete lack of
protection for basic civil and political rights in Australia’s Constitutions
and other fundamental laws, and the extent to which this continues to constrain
the operation of administrative law;
(ii)
Continuing increases in the cost of legal
services and continuing comparative lack of legal aid support for
administrative as against criminal and family matters;
(iii)
Continued lack of availability of
hearing-based merits review systems in some jurisdictions, either with
comprehensive jurisdiction or at all;
(iv)
The continuing, but unmonitored conferral
of administrative merits review functions on some lower state courts as a
substitute to establishment of a merits review tribunal, with little evaluation
of the value or equity of this approach;
(v)
Current trends to a less equitable
‘two-tiered’ system of administrative review in which the only truly no-cost
review mechanism (ombudsman) is only able to offer remedies based on
negotiation and recommendation, and determinative remedies are available only
to those in a position to pay; and
(vi)
Widespread community concern regarding
the need for effective legal protection of citizens against excessive use of
official power by governments or individual officials in the name of border
control and anti-terrorism.
That this review be overseen by the
coordination body in recommendation 2, or otherwise by existing administrative
review and/or law reform bodies or the national standing committee of
Attorneys-General, with extensive public participation.
This recommendation clearly has the most direct relevance to
administrative law. Indeed, the title of this paper has as much to do with
this recommendation as any other – based as it is on the concern that, when one
stands back and takes a long look at apparent trends in the integrity system as
a whole, administrative law itself appears to need to have some of its
integrity restored and renewed.
The specific issues listed in the
recommendation are fairly well known. Far from having been raised by the NISA
research team for the first time, they have received the attention of a wide
range of commentators, usually far more qualified to discuss them individually
than any of the authors of the NISA report. The risk identified in the NISA
assessment was that of only ever analysing the main challenges facing our
systems of administrative review as if these challenges are separate and
unrelated, when in fact they may have some common root causes. The title of
the recommendation is indicative – ‘access to justice’ is of course most
commonly discussed as an issue of cost, but scratch the surface and we find
equally important issues to do with forum, jurisdiction, standing, and
citizens’ awareness of their own rights and their capacity to assert them when
it is not just in their own interest, but in the public interest that they do
so.
If we take these challenges together, the
question becomes whether we are not now travelling a road of gradual curtailment of the effective legal
capacity of citizens to challenge government actions that affect them personally
or conflict with valid conceptions of the public interest. This question is of
course open to debate, but the conclusion reached by the NISA team was that we
indeed appear to be on this road. As discussed earlier, the introduction of
the ‘new administrative law’ brought significant liberalisation of the ability
of citizens to challenge government actions, but despite the empirical evidence
that judicial review of administrative action is effective (Creyke &
McMillan 1998; 2004) broader political commitment to the philosophy of such
review has somewhat lost its original impetus. Government attacks on administrative justice systems
as a ‘grievance industry’ rather than an indispensable part of an integrity
system are indicative of this trend (Mulgan & Uhr 2001: 162). Over several
years, curtailments of the rights of non-citizens to equitable levels of
administrative justice have now been found to have their corollary in systemic
abuses of official powers by immigration authorities, including in respect of
Australian citizens. Concerns also remain over the state of traditional
principles of due process, independent oversight and review in relation to new
laws regarding the monitoring, arrest, detention and control of those who may –
or may not – be likely to conspire to engage in terrorism.
There is a clear constitutional dimension returning to the
fundamental questions that confront administrative law. Our constitutional
founders did not put anything in the Constitution by accident – one wonders if
they had not elected to make explicit reference to at least some of the
prerogative writs, whether administrative law remedies that we continue to take
for granted would be quite as secure. For generations, basic citizens’ rights,
including what we now term human rights, have not been formed in the abstract
but due to the circumstances that can befall individuals at the hands of the
otherwise ‘legitimate’ power of governments, even governments acting with
majority support. Administrative law provides one of our society’s most
tangible examples of an area where we could once look to the common law for
deeply-rooted protections for citizens, and do so with some pride, and all we
had to do in the 1970s-1980s was systematise and codify. As our connections to
the common law of old continue to weaken, and the momentum for statutory and
constitutional rights protection regains strength, we must see these as not
simply constitutional questions but an opportunity to reconsider and
reinvigorate the basis of our systems of administrative justice.
Recommendation 10 – Effective disclosure of
interests & influences
New standards for
systems for regulation and disclosure of material interests, including
electoral contributions, based on continuous disclosure and the right of the
public or affected persons to know of interests prior to relevant decisions.
For administrative
lawyers, the ‘rule against bias’ provides the type of grundnorm or jural
postulate that compared to so many areas of principle, can be delightfully
simple and clear. This recommendation highlights the real lack of commitment
we are showing today as a society, to effective transparency in the disclosure
of interests that can be reasonably apprehended to affect official
decision-making. We have become masters of procedure and form when it
comes to disclosure. For examples, requirements for officeholders to disclose
material personal interests via official registers are now standard for
politicians and senior public officials, as these requirements are in corporate
governance. But we have become quite unconcerned with the substance of
disclosure, particularly in what has long been regarded as the most important
area for such disclosure in any democracy – legislative regimes requiring the
disclosure of electoral contributions by political parties and candidates, the
‘invisible world of political donations’ (see Ramsay et al 2001; Tham 2003;
Tham & Orr 2004).
There is growing
evidence that present electoral funding disclosure systems are fundamentally
ineffective, requiring technical compliance with disclosure obligations
(lodgement of returns or completions of registers) in ways that may encourage
officials to avoid conflicts of interest, but do little to inform citizens or
affected persons of such a conflict at an opportune time. The classic example
of this problem lies in disclosure of electoral contributions, which typically
does not occur until after the election concerned, by which time
electors have already cast their vote based on incomplete knowledge. These
days, we have the technology to adopt much more substantively effective
approaches. Unfortunately, passage of the ‘Orwellian’ Electoral and Referendum Amendment (Electoral Integrity and Other
Measures) Act 2006 (Cth) as
recently as last week, increasing the threshold on anonymous donations to
political parties from $1500 to $10000, provides a chilling confirmation that
as a democracy, we are now objectively going backwards (see Williams 2006).
Anonymous to everyone, we might ask, or just those not already in the know, for
whose very purpose the principle of disclosure exists?
This recommendation
is not limited to electoral funding disclosures, and has such has wider
implications for how we conceptualise the disclosure obligations of all
officeholders. However to the extent it does target the electoral sphere, this
recommendation joins others (particularly recommendation 6) in highlighting the
state of ‘puzzling self-regulation’ (Uhr 2005: 147) in
which our elected political leaders maintain themselves. This is a state which
contrasts with almost every other sphere of integrity-related regulation in our
society, and the larger theory of mutual accountability. Beyond the province
of administrative lawyers, one might ask? In some respects yes, but the
question highlights that the law of elections and of politics is incredibly
weak and neglected in Australia, when it should be far more robust.
Administrative law provides the best and most likely source of principles and
practitioners needed to close this gap.
Recommendation 11 – Whistleblower protection
and management
Revision of minimum
legislative requirements to facilitate ‘whistleblowing’ by current and former
employees, including better protection from reprisals.
This recommendation
highlights continuing weaknesses in one of the most complex, but important
areas of the law of public accountability. In Australia’s integrity systems,
there is no question that one of the single most important assets remains the
ethical standards and professionalism of those officers prepared to speak up
about integrity breaches that would otherwise go uncorrected
(‘whistleblowers’). Public sector agencies’ capacity to manage whistleblowers
positively and encourage further reporting of wrongdoing by others is vital
(McMillan 1994; Brown 2001; Brown, Magendanz & Leary 2004). However the
performance of even the most comprehensive public sector whistleblower
protection regimes is often questioned, primarily because the legislation hinges
on an ability to transform organisational cultures in ways still not widely
understood (Dempster 1997; Martin 1997; De Maria 1999).
Substantial
differences between state and territory regimes mean no single government has
currently achieved what would constitute ‘best practice’. The Commonwealth’s
scheme is positively inadequate. The extent of the confusion is such that when
the Australian Democrats last introduced a Public Interest Disclosure Bill for
the Commonwealth, in 2001-2002, they elected to model it on the ACT legislation
which is perhaps the worst in the country. Regimes comparable to those in the
public sector are now extending to the private sector, through the Australian
Standard on Whistleblower Protection Programs for Entities (AS 8004-2003) and
reforms such as Part 9.4AAA of the Corporations Act 2001, but are likely
to suffer similar limitations in the absence of a more comprehensive approach.
The full text of the
recommendation contains some key known principles of legislative best practice,
and prioritises this as an area of reform. The more fundamental questions are
currently the target of a $1.3 million research collaboration, led by Griffith University and a national consortium of 13 public integrity agencies and
Transparency International Australia, in which over 300 federal and state
agencies have already participated (see www.griffith.edu.au/whistleblowing).
Recommendation
14 – Freedom of information
Revision of FoI laws
to better respect the principle of public ‘right to know’.
That
all Australian governments revise their Freedom of Information laws to better
respect the general principle of a public ‘right to know’, by establishing:
(i)
A clear principle that citizens are entitled to
free and immediate access to such government records as they may request,
without the need for a formal application, other than in circumstances in which
it can be demonstrated that release would specifically damage or compromise
someone’s rights or legitimate interests (other than public officials or
agencies) or the public interest (other than as defined simply by the
self-interest of public officials or agencies), or pose an unacceptable risk of
such damage;
(ii)
A reversed onus of proof so that where a public
agency requires an applicant to submit a formal application for records due to
its assessment of actual or unacceptable risk of damage, and then determines to
reject that application for any reason other than privacy or personal (but not
commercial) confidentiality, the agency must first make its own successful
application for non-release of the records to the Information
Commissioner, Ombudsman or other independent review agency — or release the
records.
This recommendation
is of obvious interest to administrative lawyers, and builds on the critical
analysis to which a range of more qualified commentators such as Rick Snell and
Ron Fraser have been subjecting current FOI legislation and practices. While
all Australian governments now have such laws, it is well-known that their
operation in practice is frequently at odds with the principle of access
(Willis 2002: 174; Fraser 2003). At a Commonwealth level, government has shown
itself reluctant to review FOI requirements in ways which might help restore
the principle of ‘right to know’, e.g. through implementation of the
Administrative Review Council and Australian Law Reform Commission report, Open
Government (1995). In a very revealing farewell speech that was probably
difficult to hear outside Canberra, a recent Australian Public Service
Commissioner strongly questioned whether Commonwealth practices and attitudes
are consistent with the principle that FOI legislation be interpreted to
extend, ‘as far as possible, the right of the Australian community to access
information held by the Government’ (Podger 2005).
The major question
that confronts us is the extent to which better outcomes can be achieved by
tinkering with the detail, or whether it is time to explore the potential for a
quantum shift. The conclusion reached in the NISA project is that it is time
to seriously consider some quantum shifts, including abandonment of systems of
exemptions based on ‘classes’ of records rather than actual contents, and
dealing differently with the inherently illogical situation in which the onus
lies so heavily on applicants to challenge decisions for the non-release of
records that they cannot see.
All seven of these
recommendations are intended, like the remaining 14, as catalysts for further
debate rather than pretending to provide a definitive last word on current
dilemmas. The technical and political feasibility of some of the reforms
implied are equally open to debate. The point of an assessment like the NISA
project is to do something that is relatively rare, which is to attempt to form
an overall, holistic picture of where current strengths and weaknesses lie on
the very large canvas of regulation and administrative practice that makes up,
in this case, our public integrity systems. The resulting ‘wish list’ of
reforms can be no more than a guide to priority areas for action, but in this
case, one that is already having impacts.
4. In Conclusion: Is Public
Accountability Enough for Public Integrity?
This paper opened by asking not only how ‘the law of public
accountability’ currently features in issues our integrity systems as a whole,
but whether public ‘accountability’ is actually the same thing as public
‘integrity’, especially when defined in legal terms.
In closing, the answer is of
course, ‘no’ – at least in theory. Integrity is a much more amorphous, complex
and value-laden concept than simple accountability, which was once regarded as
an ‘awful’ idea in its mission to render more objective the ‘counting’ of human
performance against the rules and processes that bind us all in the modern
world (Hoskin 1996). Public accountability is all about compliance with
procedure; the law of public accountability often seems doubly so. The concept
of integrity is all about substance, inextricably linked with ideas of truth,
honesty, and trustworthiness, whether applied to individuals or institutions.
While truth and honesty are not synonyms for integrity, they provide its
fundamental elements; as one Canadian integrity commissioner has said, ‘the virtue
of integrity… includes honesty, together with worthiness, respect and an
expectation that a promise made will be kept, absent some factor or
circumstance beyond the control of the promiser’ (Evans 1996).
The reason for asking this
final question, is that in practice, our ‘integrity systems’ often have a very
hard time being anything more than simply ‘accountability systems’. In both
cases, we know these systems exist because the structure of modern society is
now such that we simply cannot rely on normal, human, interpersonal trust to
hold our institutions together and in place. Instead, in fact, we establish
systems that institutionalise distrust, turning it around to play a
positive role in the life of our institutions so as to ‘enculturate trust’ in
business and government (Braithwaite 1998). We make our executive agencies
subject to the scrutiny of an elected parliament, because as a populace, we
cannot easily collectively exercise that scrutiny ourselves. We give watchdog
agencies the power to monitor and investigate our officials, not because we
distrust all of them all of the time, but because we need to know that our
trust in them is not misplaced or being abused. We recognise the rights of
individuals to take up their own legal causes against government in independent
courts and tribunals, because we trust in the self-interest of individuals to
identify when they have been wronged, knowing that otherwise, many wrongs would
go undetected and unremedied.
Unfortunately, while our
‘accountability’ systems may hopefully increase the prospects of our officials
acting with integrity, they cannot themselves guarantee it. We all know that officeholders
can be perfectly accountable in legal and technical senses, and still breach
standards of integrity. Similarly, their actions can be defended as highly
responsive or responsible, in policy or political terms, even when quite
corrupt in others (see Uhr 2005: 189). Importantly political scientists and
public policy experts have for some years been noticing that although
‘accountability’ and ‘responsibility’ have different meanings in theory, in
practice these terms tend to be used interchangeably, as if meaning one and the
same thing. The more we talk about ‘public integrity’ in the same breath as
‘accountability’ and ‘responsibility’, the more we risk the same result.
Table 4.
Defining Accountability, Responsibility and Integrity
(Brown & Uhr 2004; Brown et al 2005: 10)
|
Meaning
|
Technical
(Process-rational)
|
Substantive
(Value-rational)
|
Personal
(Pre/post-rational)
|
|
(Dobel’s model)
|
(Institutional-Legal)
|
(Implementation / Effectiveness)
|
(Personal-Responsibility)
|
|
‘Accountability’
|
Individual actions are, or can be held to account.
|
Individual actions invite, are open to accountability.
|
Accountability makes person trustworthy.
|
|
‘Responsibility’
|
Individual actions are, or can be held responsible.
|
Individual actions are responsive, responsible.
|
Person is responsible, trustworthy.
|
|
‘Integrity’
|
Actions accord with
stated purposes/ values; trust is honoured.
|
Actions are honest,
honourable.
|
Person is trusted,
has honour.
|
Source: Brown applying Weber (1954)
and Hoskin (1996) to Thynne & Goldring (1987: 4-7), Davis et al (1993: 79),
Uhr (1993, 1999), Schedler (1999), Dobel (1999) and Mulgan (2003: 7-22, 240).
Table 4 above is one attempt
to unpack, and contrast, the meanings we give these three terms in practice.
Its references points include some deep sociological theory as well as more
recent discussions in public policy, including the work of the American
political scientist Pat Dobel (1999) in identifying at least three distinct
ways in which concepts of public integrity tend to be articulated – in
‘institutional-legal’ terms, in ‘effectiveness/implementation’ terms, and in
‘personal-responsibility’ terms.
Administrative law – the law
of public accountability – functions primarily to help secure the
‘institutional-legal’ dimensions of public integrity. The final lesson for
administrative lawyers, borne out by the breadth of issues identified by the
National Integrity System Assessment as a whole, is to recognise this fact, but
not allow themselves to be personally limited or blinded by it.
If we want public
accountability, but nothing more, then we can go about our roles mechanically
and take pride in our professional skill in doing so. If we want
accountability to serve and support integrity, we also have to think
more critically, form more judgements, debate higher principles and read the
signs that it is time for some fundamental reinvigoration of the principles of
administrative justice, and reappraisal of the boundaries between
administrative law and other areas of law. For many individual administrative
lawyers, already perfectly cognisant of the difference between accountability
and integrity, this is no lesson at all. However in an age where officeholders
seem increasingly inclined to claim “we got away with it, therefore we must
have acted rightly”, it is an important lesson for administrative law to help
bring back to society as a whole.
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