The ICAC did not make findings about individual grant schemes or politicians, and there is no suggestion that Berejiklian or Morrison were sanctioning corrupt conduct by making those comments. But the watchdog clarified that “pork-barrelling can indeed amount to a breach of the law, including the criminal law.”
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Pressuring a public servant to skew a grant assessment, 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. It acknowledged that a politician may obtain a political benefit from exercising their public powers, but said this must be in the nature of a “side wind” and not their “dominating motivation”.
Griffith University Professor AJ Brown, leader of the Center for Governance and Public Policy’s public integrity and anti-corruption research program, participated in an expert forum as part of the ICAC’s investigation into pork-barrelling. He welcomed the report and said he hoped the NSW government adopted all 21 recommendations.
The report served a “dual function”, Brown said, in helping to change the political culture, but also “strengthening the hand of the public service, and recognizing and enforcing and upholding the expectation that the independent public service will play this crucial role in making decisions based on merit”. Both functions were equally important, he said.
Brown said governments had been allowed to function on the basis that an election commitment was itself a formal decision to allocate money, and that it had the authority of law and satisfied all criteria for a funding allocation to be made.
“That’s not a decision,” he said. “That’s an indication of the policy intent of the government. You can’t outsource the decision-making of government to a political candidate who hasn’t even been elected yet.”
The ICAC’s centrepiece recommendation was for guidelines about grants funding to be set out in statutory regulations, not policy documents, so that a contravention would amount to a breach of the law.
The watchdog also recommended NSW follow the lead of the Commonwealth and enshrine in law a requirement that a minister “must not approve expenditure of money unless that the expenditure would be an efficient, effective, economical and ethical use of the money and that the expenditure represents value for money”.
Anthony Whealy, QC, chair of the Center for Public Integrity and a former Court of Appeal judge and ICAC assistant commissioner, said the report “draws the demarcation line between merely promising money with an eye to political gain” and making a grant “primarily or solely for political gain, or where the public interest is ignored”.
He said the former “may be distasteful [but] is not corrupt conduct or criminal behaviour”. The latter “could amount to misconduct in public office, a criminal offence, or, at a lesser level, it could be 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 heeded. “Putting it bluntly, we probably need to see a successful prosecution before this bites effectively. It’s easy for politicians to fool themselves into thinking that they’re acting in the public interest,” he said.
He said the law needed to be changed to ensure that grants guidelines “are published by parliament and that the selection process is reported on to parliament … and we need a parliamentary oversight body to whom a report is made”.
“All those things are cumbersome, but until we get that we’re not going to improve the system,” Whealy said.
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