19 February 2021
The Group of Eight (Go8) welcomes the opportunity to make this submission regarding the exposure draft of the Commonwealth Integrity Commission Bill.
Please note this submission represents the views of the Go8 which leads policy and advocacy for Australia’s consistently leading-research intensive universities with seven of its members ranked, again consistently, in the world’s top 100 leading universities. Each member Go8 university may submit its own related submission.
Also note that the Go8 is happy for this submission to be published and does not wish any of it to be treated as confidential.
I believe it is critical to begin the submission with a short statement which sets out, unequivocally, where the Go8 is positioned as it relates to all of the Government’s legislation that is targeted to aspects of national security and the potential of foreign interference and its management.
The below statement has been and will continue to front Go8 submissions in this vexed area of national importance.
“The Go8 supports the Morrison Government’s view that national security risks must be dealt with. Australians deserve no less an approach. The Go8 has a solid and therefore beneficial working relationship with Australia’s security agencies, having been instrumental in the development and now implementation of the University Foreign Interference Taskforce (UFIT) guidelines for our universities. These guidelines are seen as an exemplar by our Five Eyes Plus group of nations and their leading research-intensive universities.
The Go8 believes that a strong partnership with Government is essential to ensure its member universities can continue to do everything in their power to keep our campuses and our research ‘safe’ in accordance with what is required of us to ensure national security.
Our universities are committed to working cooperatively with Government and urge it to recognise the longstanding commitment we have to protecting our national security interests. We are not naïve to geopolitical imperatives and neither have we ignored security risks to secure funding nor knowingly put national security at risk.
The Go8 sees this submission therefore as an important step; integral to working constructively by providing Government with facts that too easily have become masked by popular misconceptions of how we operate, and who we are in within a respected global research community, and leading academic community.”
The Go8 is committed to ensuring confidence and integrity in Australia’s public sector and our public institutions.
To this end, Go8 members regularly and proactively engage in a range of integrity measures, including, for example, the Defence Trade Controls Act 2012 and the University Foreign Interference Taskforce (UFIT).
It is vital to state here, as a matter of record, that the Go8 was in fact integral – as a leader – in the establishment of UFIT, and also worked collaboratively over the long term on the development of a mutually accepted and workable Defence Trade Controls Act 2012.
The Go8 takes the potential for any corruption within our universities very seriously and actively supports genuine efforts to strengthen legislative and non-legislative measures that enhance the integrity and anti-corruption efforts of its members.
It is for these reasons that the current exposure draft of the Commonwealth Integrity Commission (‘CIC’) Bill does not reassure the Go8.
- Fundamentally, the legislation does not seek to target or investigate corruption in the public space in its myriad of forms, but instead focuses upon a narrow set of pre-existing criminal offences.
- It proposes the duplication of existing functions of law enforcement agencies both within universities and the proposed Commonwealth Integrity Commission. This is lazy construct and not fit for purpose.
- The CIC cannot self-initiate investigations based upon referrals from the members of the public, nor can it hold public sessions where it is deemed to be in the public interest. It is not only important that there are efforts to combat corruption, but also that these efforts are seen to be made.
The Bill’s duplication ‘approach’ is administratively unwieldy and therefore very costly for higher education providers and research bodies to implement. There is also no evidence (or confidence) provided regarding how it can ever prove to be effective at uncovering ‘corruption’ as the Australian public would define it. Go8 members already have firm processes in place to refer suspected criminal activity to law enforcement authorities, and it is difficult to understand the justification for this duplication of activity. Where there are criminal concerns that have a unique dimension within the university sector, they are more appropriately covered under existing fit-for-purpose regimes such as the Defence Trade Controls Act and the Foreign Influence Transparency Scheme.
It is therefore unclear what the proposed CIC process would add separate to the referral of any potential criminal offences by university staff for investigation by our well-established law enforcement agencies. This lack of ‘value-add’ stems from the CIC being given the mandate to investigate a list of pre-existing offences rather than actual corruption.
Further, of the criminal offences listed in the Bill that relate to higher education providers and research bodies, not all appear to be relevant. For example, there are several offences under the Biosecurity Act, and offences related to court orders which have already engaged the attention of the judicial system. A more tightly targeted list would also allow for a more targeted application of limited administrative resources.
As a result of all of the above, the Go8 suggests the following – none of which would in any way damage or dilute what the Government is seeking to achieve:
All entities that are already subject to the jurisdiction of a State or Territory-based anti-corruption or integrity agency – including higher education providers and research bodies – should be excluded from the jurisdiction of the CIC.
Go8 members are subject to oversight from State and Territory-based anti-corruption or integrity bodies, and there is no clear or compelling reason for why this oversight function should be duplicated at the Commonwealth level.
Further, the policy reason for singling out higher education providers and research bodies for inclusion within the CIC’s remit, whilst excluding other recipients of Commonwealth funding that operate in the public space – such as charities, residential aged care operators, childcare centre operators, public and private schools and vocational education providers, National Disability Insurance Scheme (NDIS) providers, and employment services providers, to name but a few – is unclear and harmful.
The Go8 is therefore seeking no more than consistency in the policy approach.
Lastly, but far from least important, there are deep concerns created in the Bill about the consistency of State and Federal law, including operational consistency, which must be clarified and resolved.
For example, if Government does not accept the recommendation that universities should not be subject to the CIC net, higher education providers and research bodies will ultimately be subject to the jurisdiction of both State-based anti-corruption commissions and the CIC.
In this unwieldy situation, clarification will be required on how the overlap and interoperability of these commissions – such as parallel investigations and potentially conflicting operable powers – will be demarcated.
- The Go8 does welcome genuine efforts from the Australian Government to combat public sector corruption.
- The Go8 understands its responsibilities. It has and does play an active role in upholding a wide range of integrity measures under a variety of Government initiatives and legislative schemes, including, but not limited to, the Defence Trade Controls Act 2012 and The University Foreign Interference Taskforce (UFIT).
- It is because the Go8 is so serious about the subject matter that the current exposure draft of the Commonwealth Integrity Commission (‘CIC’) Bill does not reassure the Go8 in any shape or form.
- The Bill only leads to a Commonwealth Integrity Commission duplicating existing legal obligations faced by universities rather than to a genuine enhancement of anti-corruption measures which would always have our support.
- Go8 members are subject to oversight from State and Territory-based anti-corruption or integrity bodies, and there is no clear or compelling reason for why this oversight function should be duplicated at the Commonwealth level.
- Given the focus on criminal offences rather than on public sector corruption, it is especially unclear what policy purpose the CIC serves beyond duplicating the role of existing law enforcement agencies.
- There continues to be no compelling reason provided why higher education providers and research bodies are uniquely singled out for inclusion in CIC jurisdiction whereas all other non-Government entities in receipt of Commonwealth funding, or that otherwise exercise delegated or contracted Governments functions, have been excluded from its jurisdiction.
- The duplication of the criminal investigatory functions within universities required to determine reasonable suspicion is not only extremely inefficient, but clearly far less effective than providing additional resourcing to existing law enforcement agencies.
- Reasonable suspicion is a legal standard ordinarily assessed by law enforcement agencies with experience in criminal matters. Higher education providers and research bodies do not possess this expertise. This leads in dangerous directions for individuals and entities.
- The Bill’s comprehensive duplications, which cannot be seen as a value add in any shape or form, add a disproportionate administrative cost upon universities.
- There are potential circumstances that would permit investigation both by a State anti-corruption body and the CIC, leading to whether operational inconsistency will affect the operation of the State law, raising inconsistency and operational inconsistency issues under section 109 of the Constitution.
Our key recommendation is that All entities that are already subject to the jurisdiction of a State or Territory-based anti-corruption or integrity agency – including higher education providers and research bodies – should be excluded from the jurisdiction of the CIC.
If that does not occur we recommend the following:
- If higher education providers and research bodies are to be included, the CIC should have the power to investigate all recipients of Commonwealth funding.
- The legislation should include a clear definition of “corruption”.
- The CIC should investigate corruption, broadly defined, rather than a list of criminal offences.
- External to the public sector, the CIC’s investigatory powers should be limited insofar as they relate to that funding and/or its expenditure or is otherwise in direct connection to the exercise of a contracted or delegated Commonwealth Government function.
- The thresholds that apply to higher education and research bodies for notification of a matter to the Integrity Commissioner should mirror those facing public service agencies; namely, for the conduct of a staff member of a higher education provider or research body to constitute corrupt conduct, it should require that it involve abuse of their office or that it perverts the course of justice.
- The following offences from the list of criminal offences that higher education and research bodies are to have regard to (section 18 of the Bill) should be circumscribed:
- an offence against section 37 (contravening restraining orders) or 71 (dealings with forfeited property) of the Proceeds of Crime Act 2002 – these offences relate to matters that have already proceeded to judicial involvement, placing investigation and enforcement of offences related to court orders squarely within the remit of law enforcement agencies and the law courts. These matters are more appropriately managed by these organisations rather than universities and should be omitted from the list.
- An offence against… [the] Biosecurity Act 2015 – the Biosecurity Act contains a wide range of offences that have no clear connection to corruption, including, for example, discharging ballast water in Australian seas, and disposing of sediment in Australian seas. The Bill should limit itself to those offences that have a direct connection to corruption in order to accord with the mandate of the Bill (outlined in section 3), but also to minimise unnecessary administrative burden upon higher education providers and research bodies.
- Instead of listing entire Acts, the legislation should refer to each specific offence to safeguard relevance, especially where those Acts may later be amended without regard to the appropriateness of the alteration or expansion of the CIC’s jurisdiction.
- If the ‘list of offences’ approach is retained in the Bill rather than a ‘corruption approach’, then that list should include the Commonwealth Electoral Act 1918.
- Clear guidance is required (as a matter of criticality because of potential ramifications) in the legislation for higher education providers and research bodies on ‘reasonable suspicion.’
- Clarification should be provided in the legislation regarding whether an instruction from the Integrity Commissioner not to take action in relation to a corruption issue (currently narrowly construed as reasonable suspicion that a listed offence has been committed) can prevent a higher education provider or research body from reporting reasonable suspicions that an offence has occurred to the appropriate law enforcement authorities, or from otherwise acting in accordance with the law.
- Clarification should be provided on whether the stopping of a higher education provider or research body from taking any other action relating to a corruption issue (section 38(2)(b)) prevents that entity or staff of that entity from adhering to other laws or legal obligations (for example, referring the matter to law enforcement authorities), and if so, what exemptions from liability would be afforded.
- Clarification should be provided in the legislation on whether allegations or information in the public domain, but not internal to the organisation, give rise to a notification requirement.
- Separate to the provisions regarding vexatious complainants, additional safeguards should be considered to filter out patently spurious or baseless allegations or information, or at minimum, how this would, if at all, affect the threshold for reasonable suspicion.
- Clarification should be provided in the legislation on how the CIC will affect the operation of State law and resolve inconsistency issues, including operational inconsistency, in circumstances where investigations would be permitted both by a state anti-corruption body and the CIC (as per section 109 of the Australian Constitution).
- At a minimum, where an investigation of an entity – including a higher education provider or research body – by a State or Territory-based anti-corruption body is underway, the CIC should be prevented from being able to undertake a parallel investigation unless the Integrity Commissioner secures the permission of their counterpart at the State or Territory-based anti-corruption body.
The Go8 looks forward to an ongoing engagement in the development of this legislation which is critical in helping to maintain and grow public trust in the Australian Federal Government and Australian public institutions.
If you have questions regarding the Go8 submission please do not hesitate to contact me at firstname.lastname@example.org or 0417 808 472.