The ICAC made no findings about individual or political grant schemes, and there is no suggestion that Berejiklian or Morrison were sanctioning corrupt conduct by making these comments. But the watchdog clarified that “making pork butts can be a breach of the law, including criminal law”.
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Pressuring a public official to bend the assessment of a grant, dishonestly favoring political and private advantage over merit and deliberately breaching the guidelines of a grant program could amount to corrupt conduct, the ICAC said. He acknowledged that a politician can derive political benefit from the exercise of his public powers, but said this must be in the nature of a “tailwind” and not his “dominant motivation”.
Griffith University Professor AJ Brown, Head of the Public Integrity and Anti-Corruption Research Program at the Center for Governance and Public Policy, took part in an expert forum as part of ICAC’s inquiry into the pork meat. He welcomed the report and said he hoped the NSW Government would adopt the 21 recommendations.
The report served a “dual function”, Brown said, of helping to change the political culture, but also “strengthening the hand of the public service and recognizing and enforcing and maintaining the expectation that the independent public service will play that role crucial in making decisions based on merit.” Both roles were equally important, he said.
Brown said governments had been able to operate on the basis that an electoral commitment was itself a formal decision to allocate money, and that it had the authority of law and met all the criteria for making an allocation of funds.
“This is not a decision,” he said. “This is an indication of the government’s political intent. Government decision-making cannot be outsourced to a political candidate who has not yet been elected.”
ICAC’s central recommendation was that guidelines on grant funding should be set out in statutory regulations, not policy documents, so that a breach would be a breach of the law.
The watchdog also recommended that NSW follow the example of the Commonwealth and enshrine in law a requirement that a minister “must not approve the expenditure of money unless he is satisfied that the expenditure would be an efficient, effective use, economic and ethical aspects of money and that spending represents value for money”.
Anthony Whealy, QC, chairman of the Center for Public Integrity and former Court of Appeal judge and ICAC deputy commissioner, said the report “draws the line between just promising money with the objective of political gain” and making a grant “mainly or solely for political gain, or where the public interest is disregarded”.
He said the former “can be in bad taste [but] it is not corrupt conduct or criminal behavior”. The latter “could amount to misconduct in public office, a criminal offense or, at a lesser level, could amount to a substantial breach of the ministerial code of conduct if a minister is involved”.
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But Whealy was less optimistic that the report would be heard. “To put it bluntly, we’re probably going to have to see a successful prosecution before this really bites. It’s easy for politicians to be fooled into thinking they’re acting in the public interest,” he said.
He said the law needed to be changed to ensure that grant guidelines “are published by parliament and that the selection process is reported to parliament … and we need a parliamentary oversight body that reports to “.
“All these things are cumbersome, but until we get it done we’re not going to improve the system,” Whealy said.
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