Can power be regulated in a neoliberal age? A theoretical best-practice model for an Australian Federal anti-corruption commission

This thesis sits across criminal law, public policy and regulation in Australia and Hong Kong. It seeks to identify, define and examine corruption in public office through multiple lenses, including from economics- and values-based theoretical standpoints. This research seeks to establish that the neoliberal economic and political frameworks of Australia and Hong Kong have allowed corruption to flourish by introducing neoliberal techniques such as privatisation and new public management. This, it is argued, leads to reduced accountability and responsibility of public institutions and politicians and thus diminishes these two core principles of democracy. The research applies a Foucauldian lens to the analysis of neoliberalism and the rationalities available to government to govern differently from in the past. The government provides the tools to individuals and agency to self-regulate. Self-regulation has become the dominant form of regulation under neoliberalism and, this it is argued, has allowed corrupt conduct to flourish. To determine how effective the ‘gold standard’ Hong Kong Independent Commission against Corruption (ICAC) is, it is compared to the New South Wales ICAC. The results conclude that the HKICAC’s zero-tolerance of corruption allows it to be successful. However, this is because the HKICAC is fully resourced so that it can investigate all corruption. The NSWICAC, on the other hand, has been gradually defunded and stripped of its powers to become, arguably, a poor reflection of the gold standard ICAC on which it was based. The research conducts a doctrinal analysis of corruption laws in New South Wales, Hong Kong and the Commonwealth and then a phronetic legal approach to the analysis of submissions made to committees which had the task of, firstly, identifying whether a federal anti-corruption commission is wanted by the public and, secondly, receiving submissions on the type of model the proposed Commonwealth Integrity Commission might follow. Although the government is yet to introduce legislation on the CIC, this research analyses the proposed form set out by the government and compares it to the legislation for a national integrity commission as drafted by Griffith University and Transparency International. The response to the four phronetic questions proffered by Flyvbjerg in the application of phronesis indicates that the government appears to be leading Australia to a future which has less integrity and democracy than now. The public is losing the debate and so it is the government’s reality which influences the discourse. The government is dominating the public by not listening to its voices as well as by not, firstly, establishing a national integrity commission and, secondly, making it a ‘strong’ commission. Instead, the proposed form, which has a higher threshold to be met for public official corruption, will allow politicians to hide behind it. An examination of the UN guidelines relevant to establishing an effective anti-corruption commission demonstrates that the federal government’s proposed CIC does not meet with the requirements of the United Nations Convention against Corruption to which Australia is a signatory. Without doubt, Australia needs an effective anti-corruption commission to identify and regulate corruption. The proposed Commonwealth Integrity Commission (CIC) is not that model. This research argues that the most effective international commission is that of the HKICAC and urges the federal government to establish a commission which more closely resembles that gold standard. The legislation of the NIC, introduced by Ms Cathy McGowan, should be adopted so that Australia can comply with its international obligations, including those of a signatory of the UN Charter.