The news that the inaugural National Anti-Corruption Commission (NACC) commissioner, Paul Brereton, has resigned will surprise no one who has been following the unflattering headlines about the NACC since it began operation three years ago. But who will replace him, and how will they be chosen? How can the public have confidence that they will be not only independent, but also have the courage to expose truths that may be uncomfortable for governments, driven by a robust assessment of the public interest?
High Hopes and Disappointment
Many people fought hard for the introduction of a national anti-corruption commission against a backdrop of political apathy. While the NACC did not meet everyone’s expectations, it was welcomed with high hopes. Three years on, there is a palpable air of disappointment in its performance. As a former integrity agency head, I know the public never gets the full picture of what goes on behind locked doors. You will get bad press from time to time, though negative headlines can be unfair and undermine the huge amount of good work the staff of an agency do every day without fanfare.
The Core of Existence: Perception of Independence
But perception matters. And the perception of independence of an integrity agency is at the core of its very existence. Dealing with corruption and multiple other forms of bad behaviour is a tough gig. I should know, having spent 10 years as Victorian ombudsman and before that, 10 years with the UK’s Independent Police Complaints Commission. You have to make incredibly difficult decisions that will anger powerful people and deal with complex issues you are constrained from explaining publicly. Leading an integrity agency will never win you a popularity contest.
How Leaders Are Chosen
We hear regularly about how integrity agencies need the right powers and sufficient funding. Less attention is paid to how their leaders are chosen. Across Australia, most integrity chiefs – including ombudsmen and auditors general – are appointed either directly by the government they are tasked to oversee, or with the involvement of a parliamentary committee controlled by the government. That is true of the NACC commissioner, who is appointed by the attorney general. The appointment must be approved by the joint committee on the national anti-corruption commission. Half the members of the committee must be members of the governing party and half from other parties, but the chair, who has the casting vote, must be a member of the governing party. Independence is compromised from the start.
Flaws in the Current Process
Extraordinarily, there is no requirement in legislation that the position of NACC commissioner be publicly advertised. The appointee is required to be a former judge – or to have been a practising lawyer for at least five years. It is difficult to see how the second of these requirements captures the gravitas required of the leader of the national anti-corruption body. Cynics may say that’s always the way with government appointments. Someone has to choose them. That was the case for my own appointment as ombudsman, by a Liberal government shortly before it was turfed out by Daniel Andrews in 2014. So even though I had come straight from the UK, had no political affiliation and met none of the Liberal ministry before my appointment, I was regarded in some Labor circles as a Liberal hack.
Better Models Elsewhere
But it’s not the case everywhere in Australia. The appointments of anti-corruption chiefs in Queensland, Western Australia and the ACT are not controlled by the government of the day. Each requires bipartisan support, and in some cases executive government is not even involved in the process. The process for anti-corruption leaders in Victoria, NSW, South Australia and Tasmania is also more independent than that of the commonwealth. It is controlled by the executive, but is subject to a veto by a parliamentary committee not controlled by the government. So there are ways of appointing independent integrity officials that ensure real independence. It would not even be difficult to introduce a better process for the NACC.
A Path Forward
The joint committee on the national anti-corruption commission could be reconstituted with a non-government majority. The committee could set appropriate qualifications and experience for the role, ensure that merit-based selection processes are followed, including public advertising and an independent selection panel, and approve the preferred candidate. So how can the next NACC commissioner recover public confidence in a vital integrity institution? A transparently independent, rigorous, merit-based process for that appointment would be a good start.
Deborah Glass was Victorian ombudsman from 2014 to 2024. She recently conducted research into independent integrity officers as an honorary fellow at Melbourne Law School.
