Attorney-General Mark Dreyfus is correct that a federal ICAC should investigate pork-barrelling, and that pork-barrelling is corruption. In fact, it is imperative that the new government seize on the growing momentum against the capacity of politicians to abuse discretionary grant programs, which has emerged in NSW.
In the wake of the extraordinary pork-barrelling of the Berejiklian-Barilaro government, the Perrottet government has committed to end the practice and has commissioned a review of grants administration, and the NSW ICAC is also examining pork-barrelling and its relationship with corruption as well.
This is a turning point in public administration that could see the drastic curbing of one of the foulest blights on government — anything less than a broad remit to examine pork-barrelling would be a failure by the federal government.
A key document in the NSW ICAC review is a paper by prominent legal academic Anne Twomey that examines the link between pork-barrelling, criminal conduct and corruption, using NSW legislation as her basis but also examining federal pork-barrelling. Twomey demolishes two of the key arguments advanced by politicians that justify pork-barrelling:
- courts have found that misconduct does not have to only be about abusing an official position for pecuniary gain — that is, the distinction made by politicians between decisions that help their party, and decisions that help themselves individually, is spurious. In any event, Twomey points out, ministers and shadow ministers have a direct financial interest in winning their seats and winning elections for their party — thus blurring any such distinction anyway
- it doesn’t matter if a decision achieves some valuable public end as well as being an abuse of power: “breach of public trust can also occur, even when the actual outcome of a decision achieves a valuable end. It is the abuse in the exercise of the power, being an exercise for an improper purpose, which is relevant, rather than the end achieved”.
Such breaches of trust may or may not breach criminal law or fall within the NSW ICAC’s remit — for one thing, they have to be “serious” breaches — but Twomey notes the use of the word “partial” in both jurisprudence and the NSW ICAC act, and its applicability both to statutory appointments and to grant allocation. Pork-barrelling is a partial allocation of funding, in the sense that it is not an even contest between applicants, regions or electorates; that merit is not the guiding principle behind allocation, but partisan interest.
But as Twomey notes, “difficulties arise where there are mixed motives”. An act might be motivated by both the public interest and partisan interests — indeed, one would hope the entire nature of politics was shaped by a desire for politicians to keep being reelected by serving the public interest well. This grey area was picked up by NSW ICAC commissioner Peter Hall, who last week held up the example of Berejiklian’s heavily rorted Stronger Communities Fund of something that “crossed the line”: “you couldn’t have it any clearer than that as to what the motive was … sole purpose of that exercise was political or electoral and that’s clearly on the other side of the line”.
In that case, however, there was actual documentary evidence that staffers and ministers were spending the money for political benefit. Such evidence will be atypical — especially from now on — thus making the resolution of “mixed motive” cases harder. “A significant difficulty in bringing prosecutions for misconduct in public office is the burden of establishing an improper purpose. There will commonly be insufficient evidence to found a prosecution,” Twomey says.
One solution might surely be that decisions motivated predominantly by personal or political interest would be corruption, regardless of what public interest they might have been intended to serve. But the burden of proving improper purpose will remain. That’s why we need greater separation between decision-making and ministers and their offices. A federal ICAC must go after pork-barrelling politicians. But it would be better if such politicians are prevented from being able to decide grant allocation in the first place.
All of this discussion about pork-barrelling has so far concentrated only on the vote-buying first-level corruption, and has ignored the more serious second- and third-level corruption that can (and I’m sure does) happen when ministers hold the purse-strings.
When I, as minister, give a $2m grant to my local footy club for new changing rooms, I am buying votes. But when I also know the builder who is going to build that changing room using those funds, and when that builder is going to donate out of the profits of that contract to my campaign fund or that of my fellow party member in the next electorate, that’s the real corruption.
Our local ( rural ) golf club is the beneficiary of a $1.5M grant to build a new clubhouse. There was nothing much wrong with the old one, just that they couldn’t get the membership and greens fees because of the location and the entrenched refusal of the district Gooris to pay ‘because it’s our land’. Sure, it might well be, but it was the paying members who built the golf course and the clubhouse – mostly with voluntary labour .
Anyway, the local Nats member was re-elected but with a reduced majority ( it more than halved ) and the seat will likely become independent within the next two elections. We now have one of the most expensive public buildings in the shire in a township of about 1500 – an expensive way of keeping an MP in his seat for 2 or so terms.
I can’t believe the number of politicians and voters who fail to understand that public (taxpayer) funds and party funds are not the same thing.
the only way to fix this is systemically.
ministers should be responsible for signing off on the guidelines (rules) for awarding grants.
public servants (departments) should be responsible for awarding the grants according to the approved guidelines.
no interference from the minister or their staff in the awarding process
thats it.
of course it would be incredibly unpopular with politicians…….
Fair enough, but rather than ministerial guidelines I’d rather see ministers limited to only making spending proposals in bills to parliament, such as the budget. Parliament then decides if that spending is something it supports. No further direct ministerial involvement should be permissible. The funding parliament has agreed must then be allocated by a relevant department or government agency that is of course legally obliged to carry out the will of parliament as set out in the legislation. The actual spending decisions would be made with no ministerial interference or directions.
It is difficult for a politician to understand something he can get away with not understanding.
No interference from politicians, of course, but both the guidelines and the grants should be open to scrutiny and to challenge from any side.
That is supposed to be the case now, but the corrupt pollies we’ve just kicked out over-rode that and the P.S., afraid of losing their jobs, just went along with it.
Saw Professor Anne Twomey on The Drum last week. She speaks as well as she writes. A true Australian hero.
Is this not over-complicating the issue? ‘Mixed motive’ and ‘single motive’ is a difference without distinction. The solution is not engaging in legal thought experiments about where the ‘line’ falls. The solution is legislations that simply states that all grants must be made by bureaucrats (never politicians) according to published criteria which may be drafted by politicians. That way there is no ‘motive’ attaching to any allocation. It is simply a matter of empirical compliance with the scheme’s criteria.
The iniquity in all this naked pork-barrelling is that deserving communities are deprived of funding by the political misallocation of funding. Sure, an MP represents an electorate, but parliament represents all citizens without distinction.
And the irony is that I suspect all this naked corruption did nothing positive for the coalition’s electoral prospects anywhere. to the contrary, the publicity more probably steeled the resolve to get rid of the crooks. Certainly that is what the Perrottet government has detected that its pork-barrelling has not done it any political favours.
Leaving it to immoral politicians to chose who gets what and how much is simply the outcome of the Howard years of politicisation of the entire public service and it’s associated advisers.……….resulting in an attitude of feel free to help yourself. The did.