The Australian Public Sector Anti-Corruption Conference (APSACC) last week offered a wide programme of speakers and accordingly attracted a large audience. The recent changes to whistleblower laws meant that APSACC was of particular interest this year to those who work on integrity matters in the public and private sectors. Whistleblower protections are attracting great interest not just in Australia but also in other jurisdictions. In the US, President Trump is currently demanding that a whistleblower’s identity be revealed. In the debate on whether that should be the case, a local radio commentator this week reminded listeners that it is ‘whistleblower laws that make accountability possible’. I tend to agree. It is conferences like APSACC that remind us what is at stake to our democracy if we are not vigilant in uncovering and deterring integrity breaches and corruption in the public and private sectors.
After The Honourable Robert Redlich, Commissioner, Independent Broad-Based Anti-Corruption Commission Victoria, welcomed participants, the Chief Justice, The Honourable Anne Ferguson, outlined the broader impact of corrupt practices in workplaces in that employees are more likely to feel disengaged, vulnerable and powerless in environments where corruption goes unchecked. To counter such practices is to contribute to a safe workplace. Her Honour reminded us that we all have a role to play in this regard.
Keynote speaker Professor Robert Klitgaard, Claremont Graduate School, California, commenced by quoting Tasmanian academic James Joyce and his book Born Bad. He asked, ‘Are we born bad?’ As an example, he noted that politicians generally start off wanting to take on corrupt systems, but over time sometimes succumb to culture norms that say you need to ‘bend the rules’ to get ahead. He asked us whether, if we had to pay a bribe to get our elderly mother into a nursing home, would we pay that bribe and is this acceptable in the circumstances? He reminded us that in some communities family ties are the norm and referred to as the ‘economics of affection’. According to Professor Klitgaard, when countering corrupt practices, it is important to understand the cost of corruption, and that sometimes the cost of countering particular corruption may be too much. He quoted the late Peter Drucker who once said that company cultures are like country cultures: you don’t try and change them, but rather you try and work with what you have got.
Professor Klitgaard advocated that the following approach be taken to responding to a corrupt practice:
- Acceptance: yes, we have a problem. Don’t moralise, but rather assess the situation and collect the data.
- Agreement: corruption can be addressed so agree on the right framework to deal with it. It is usually not people who are corrupt, but rather systems which are corrupt and need to be addressed.
- Case studies: point to a similar organisation that had a similar problem and outline how they overcame it. Show how people were able to fix their problem in a situation as bad as the one you are dealing
- Help: ask, ‘How can I help?’ Don’t tell the
organisation what to do.
Following on from a focus on the theory of addressing corrupt practices, the next keynote speaker was The Honourable Jennifer Coate, Commissionerfor the Institutional Response to Child Sexual Abuse Royal Commission. Her Honour spoke about the work of the Royal Commission in uncovering the corrupt practices of institutions that covered up the abuse of children. The output of the Commission does not become less sobering the more often one hears about it. The Commission heard from 8,000 participants over five years. Sixty-two correctional facilities were visited to hear from participants – which as Her Honour pointed out, said something about the trauma they had experienced as young people. Two thousand five hundred matters were referred to the police. Ten per cent of reports were reported for the first time. There were 57 public hearings live-streamed. The internal research unit produced 59 separate research reports. Four hundred recommendations later, some of the observed themes from the organisations that failed in their duty of care to children included: a misunderstanding of the nature of the offence, overt protection of offenders, application of religious laws and preference for the protection of reputation and status over the welfare of children. Many of these organisations had few or no females in any positions of power and cultures that demanded absolute loyalty and obedience.
Her Honour outlined the barriers to reporting abuse in these organisations, including that bullying and sexualised language was normalised and there was no obvious way to make a complaint. Investigations were either non-existent, ill-informed or poor. There was a lack of independent oversight and no effective codes of conduct or record-keeping.
It is safe to say that since the Royal Commission tabled its report, much has changed in the education sector and other sectors that have contact with children. The recommendations are still being implemented but in the meantime, Victoria is already creating a safer environment for children through the enactment of laws and the establishment of institutions like the Commission for Children and Young People. Her Honour’s presentation was a reminder of how systematic failures can continue for a long time and sometimes only a Royal Commission is able to uncover the true extent of the corruption and damage.
In a panel session entitled, ‘The role of the anti-corruption agencies and corruption prevention: what’s the future? An external perspective’, four academics shared relevant research findings. Dr Colleen Lewis, Monash University, examined the bodies set up in various States, noting that the Federal Government is the last jurisdiction struggling to establish an anti-corruption body. She examined the politics behind the lack of progress and pointed out that behind all public policy choices there are political motivations.
Professor Valerie Braithwaite, Australian National University, writes about trust in our society, and the lack of accountability that is evident after serious breaches of trust. For example, after the failures that caused the 2008 global financial crisis, where was the process to hold people to account? The fact that white collar crime has reached a whole new level is not just a US problem. There are other examples of systemic failures in institutions that have breached trust, such as the deficiencies uncovered by enquiries into vocational training, robo debt, banking and nursing care. On the other hand, the public are not innocent either, and she alluded to the literature that looks at the ‘moral economy’, and how individuals contribute to a corrupt and unaccountable society through fraud, tax evasion and avoidance of paying penalties.
Where corruption flourishes, inevitably people become cynical. This is not assisted by the structures within organisations that conceal poor behaviour. According to Professor Braithwaite, those structures typically have these features: they are hierarchical; they have no complaints procedures; information is withheld from outside scrutiny; and they are run by senior people who cannot be questioned and lack transparency.
The next panellist was Emeritus Professor John McMillan, Australian National University, who like Dr Lewis, observed the faltering steps taken by the Commonwealth to introduce its own independent integrity body. Professor McMillan outlined the key features currently being debated, including whether the framework should be brand new or leverage from existing models, who should be able to complain, over whom should the body have jurisdiction and whether the hearings should be public.
The final panellist was Professor Tim Prenzler, University of the Sunshine Coast, who wondered if the new Commonwealth body, will be designed to fail. He pointed out that independent formal investigations do not always result in an outcome expected by the complainant and they may be deeply disappointed. He suggested an internal ‘conciliation’ runs the risk of sounding like a ‘cheap rip-off managerial resolution’. On the other hand, an internal mediation has a higher success rate but both options are only focussed on the behavioural, not legal, issues. Professor Prenzler suggested that outside policing, there are few if any examples of how these models might work. According to his research, the public want ownership, and if an approach is failing over and over, then the public need to be involved in identifying the solution.
It may seem obvious, but in many situations involving conflict or breaches of trust, it helps to start with asking the aggrieved what they want and seeking buy-in from constituents. I found the sessions I attended at the APSACC not only informative and thought-provoking, but an insight into the important (and consistently challenging) work of our Australian anti-corruption bodies.
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Sarah Rey is Managing Partner at Justitia. To view Sarah’s profile, click here.