“The
former NSW premier, Gladys Berejiklian, was reported in 2020 as
saying that pork barrelling was “not an illegal practice”. The
former prime minister of Australia, Scott Morrison, was recently
reported as saying, in relation to any federal integrity commission
that may be established,
that such a body should focus on identifying criminal behaviour
rather than subjective questions such as whether spending in respect
of marginal seats amounts to pork barrelling. Mr Morrison added, “No
one is suggesting anyone has broken any laws, are they?”.
The
discussion below answers such suggestions with a clear statement:
pork barrelling can indeed amount to a breach of the law, including
the criminal law, and in some circumstances, it can also constitute
serious corrupt conduct under the ICAC Act.” [NSW
ICAC Report On Investigation Into Pork Barrelling In NSW,
August
2022]
NSW
Independent Commission Against Corruption (ICAC), media
release, 1 August 2022:
ICAC
finds pork barrelling could be corrupt, recommends grant funding
guidelines be subject to statutory regulation
The
NSW Independent Commission Against Corruption (ICAC) has found that
pork barrelling could constitute corrupt conduct in certain
circumstances, while recommending that any whole–of–government
guidelines concerning grants funding be issued pursuant to a
statutory regulation.
The
Commission released its Report on investigation into pork barrelling
in NSW (Operation Jersey), today, in which it defines pork barrelling
as “the allocation of public funds and resources to targeted
electors for partisan political purposes”. In the report, the
Commission finds that while individual matters should always be
assessed on a case-by-case basis, a minister, for example, may engage
in corrupt conduct involving pork barrelling, within the meaning of
section 8 of the Independent Commission Against Corruption Act 1988,
if the minister:
influences
a public servant to exercise decision-making powers vested in the
public servant, or to fulfil an official function, such as providing
an assessment of the merits of grants, in a dishonest or partial way
applies
downward pressure to influence a public servant to exercise
decision-making powers vested in the public servant, or to fulfil an
official function, such as providing an assessment of the merits of
grants, in a manner which knowingly involves the public servant in a
breach of public trust
conducts
a merit-based grants scheme in such a way as to dishonestly favour
political and private advantage over merit, undermining public
confidence in public administration, and benefiting political donors
and/or family members
deliberately
exercises a power to approve grants in a manner that favours family
members, party donors or party interests in electorates, contrary to
the guidelines of a grant program which state that the grants are to
be made on merit according to criteria
The
report notes that those who exercise public or official powers in a
manner inconsistent with the public purpose for which the powers were
conferred betray public trust and so misconduct themselves. The
Commission also finds that pork barrelling could satisfy section 9 of
the ICAC Act. It may do so, for example, by conduct amounting to a
substantial breach of the Ministerial Code of Conduct, or the
Members’ Code of Conduct, or conduct constituting or involving the
common law offence of misconduct in public office.
The
Commission notes that in issuing this report, it intends to make it
clear that ministers and their advisers “do not have an unfettered
discretion to distribute public funds. The exercise of ministerial
discretion is subject to the rule of law, which ensures that it must
accord with public trust and accountability principles.”
Altogether,
the Commission makes 21 recommendations to help prevent or better
regulate pork barrelling. These also include that:
the
Government Sector Finance Act 2018 be amended to mirror section 71
of the Commonwealth Public Governance, Performance and
Accountability Act 2013 by including obligations that a minister
must not approve expenditure of money unless satisfied that the
expenditure would be an efficient, effective, economical and ethical
use of the money and that the expenditure represents value for money
clause
6 of the Ministerial Code of Conduct be amended to read, “A
Minister, in the exercise or performance of their official
functions, must not act dishonestly, must act in the public
interest, and must not act improperly for their private benefit or
for the private benefit of any other person”.
The
Commission’s report follows an investigation it commenced in May
2020 into the NSW Government’s Stronger Community’s Fund.
Following an inquiry by the NSW Legislative Council’s Public
Accountability Committee, a performance audit by the NSW
Auditor-General, an assessment by the State Archives and Records
Authority and a review into grants administration in NSW (led by the
Department of Premier and Cabinet in partnership with the NSW
Productivity Commissioner), the Commission revised its investigation
scope. It determined that it was in the public interest to examine
and report on the circumstances where, it had concluded, pork
barrelling could involve serious breaches of public trust and conduct
that could amount to corrupt conduct.
To
assist its investigation, the Commission engaged a number of experts
to prepare papers and participate in a public forum held on 3 June
2022. The report represents the view of the Commission but draws on
the analysis of these experts. The report is available on the Commission’s website.
Download
full report
_____ENDS_____
In which it is revealed just how much wiggle room there is left to the Perrottet Government that would allow it to proceed with business-as-usual pork barrelling if it continues to support Recommendation 2 in the April 2022 Review
of grants administration in NSW: Final Report. As well as its lukewarm "in principal" support for the creation of law to hold members of parliament accountable.....
Excerpts
from NSW
ICAC Report On Investigation Into Pork Barrelling In NSW,
August
2022
which
include parts of the transcript of the NSW
ICAC Forum on Pork Barrelling
held 3 June 2022:
At
Page 6:
Also
in 2020, the NSW Auditor-General announced a performance audit of the
SCF, and the Public Accountability Committee (PAC) of the NSW
Legislative Council established an inquiry into NSW grant programs
(including the SCF). The reports issued by the Auditor-General (in
February 2022) and the PAC (in March 2021 and February 2022) made
numerous observations about the management of the SCF, including
adverse findings. The State Archives and Records Authority (SARA)
also released a report in January 2021, dealing with recordkeeping
aspects of the SCF.
In
November 2021, Premier the Hon Dominic Perrottet MP announced a
review of grants administration in NSW. Given the existing findings
and review processes concerning the SCF, the Commission decided that
it was not in the public interest to continue investigative action
that could have led to adverse findings against any individual.
Consequently, the scope of the Commission’s investigation was
revised to focus on the practice of pork barrelling more broadly and,
in particular, whether it could allow, encourage or cause corrupt
conduct (chapter 1).
At
Page 78:
Now,
in November 2021 the new Premier Dominic Perrottet stated that “Taxpayers
expect the distribution of public funds will be fair and I share that
expectation,” he said. He ordered a review of how grants should be
administered and this was a very good sign that something might
actually be done to prevent the recurrence of such abuses in the
spending of public money. Now, that report was published quite
recently in April. Some of its recommendations are very good, such as
the creation of a new guide on grants management to better ensure
documentation and critically transparency.
So
that’s the first step that needs to be taken. In my view I don’t
think it goes
far enough. First, the obligations on ministers and their staff in
relation to grants need to be imposed by law, not just in a premier’s
memorandum and was proposed in that report. And this is because other
accountability provisions in codes of conduct and statutes such as
the ICAC Act turn on whether there has been breach of a law, not a
premier’s memorandum, a law. So for example if a minister has
behaved in a partial manner and his or her behaviour would cause a
reasonable person to believe that it would bring the integrity of the
office or parliament itself into serious disrepute, a finding of
corrupt conduct can be made by ICAC if the minister’s acts also
constitute breach of a law, not a premier’s memorandum, a law. [my yellow highlighting]
Similarly,
clause 5 of the Ministerial Code of Conduct requires a minister not
to direct or request a public service agency to act contrary to a
law. Burying grants rules in a memorandum rather than in a law avoids
consequences for ministers if they breach those rules or if they
instruct others to do so. Another problem is the failure to address
the issue of grants being made for the advantage of a political party
including when they are election promises. Now, at the Commonwealth
level the use of ad hoc noncompetitive grants to give effect to
election promises has resulted in rules about merit and proper
assessments being tossed out the window.
Any
new state grant rules should explicitly provide that grants must only
be allocated in the public interest and not predominantly for party
political purposes. New grants rules should also contain express
provisions to prevent avoidance and to ensure that election promises
must still be subject to proper scrutiny and merit assessment.
At
Page 128:
The
second thing is that I think that we’ve got to recognise that at a Commonwealth
level those statutory or the rules that have the force of law, you
know, are crucial. I think we should remember that in the sports
rorts affair, the main recommendation of the Australian National
Audit Office there in relation to that was to bring those grants
within those guidelines, and ministerial decision-making about grants
within those guidelines. It was recommendation 4 and the government
accepted it on the spot. So it’s a bit like saying, yep, actually
we’re a bit scared now but we’re going to accept that
recommendation. So actually to say that nothing was done is not
accurate because, in fact, the system was pushed in the right
direction. But I think the key problem is those mechanisms for
transparency around when ministers decide to deviate from their
official advice, making those mechanisms real so that there’s a
real deterrent to poor or partisan decision making. Because we have
the problem of corruption in plain sight. There’s plenty of people,
I suspect that John Barilaro might have been one of them, who would
say, “Yeah, we’ll just do it openly. We’ll just say, yeah,
these are the reasons,” and, you know, and dare anybody to tell us
that this is not in
the public interest. So we’ve actually got, that’s got to work in
a way that actually can be a realistic disincentive to make poor
decisions while not stopping the ability to make good decisions.
That’s quite a complex thing to get right at the end of the day in
politics, I think.
The
third thing is that the – and I would absolutely agree with what
Joe just said, I think that goes to the problems maybe in the report
and the problems with the codes of conduct at the moment, is this
focus on public versus private. They have to more actively and
explicitly deal with what we’re talking about here, that it’s not
a contest between public duty and private personal gain, that it’s
something more complicated than that and that the guidance on that in
codes of conduct that are then properly enforced is as crucial as
anything else, because it’s one of the few ways that we’ve got to
actually support good decision-making culture amongst politicians and
actually influence their understanding of what they’re doing.
Otherwise it just turns into Whac-A-Mole, you know, what they’re
currently getting away with over here they will just try and get away
with over there because they believe that they’re doing the right
thing. We’ve got to create a framework where it’s more clearly
understood why this is not the right thing. So that’s number three.
Number four is, I would go back to the electoral bribery offence and
actually recast the electoral bribery offences to make it clear that
pork barrelling can be electoral bribery, which is currently not,
it’s currently written in the other direction so that it’s
actually a clear warning in criminal law where it needs to be. You
don’t need to be an expert in public trust and misconduct in public
office to say giving people money to influence how they vote, or how
that immediate community votes, is actually problematic in criminal
law directly.
At
Page 173:
Allegations
of pork-barrelling have also occurred at the State level. In recent
times, they have been directed at sports grants, arts grants and
bushfire relief funds, amongst other funding programs.
In
November 2020, the then Premier, Gladys Berejiklian, admitted that
the payment of grants to local councils from the Stronger Communities
Fund in the period prior to the previous election amounted to
pork-barrelling, but claimed it was ‘not an illegal practice’.
The Premier also later justified ‘throwing money at seats to keep
them’, arguing that this was part of ‘democracy’. In response
to questions about why grants were made contrary to the advice of
public servants she observed that Departments were not expert at
‘winning byelections’.
It
seems, however, politicians are not expert at it either and that
pork-barrelling is not terribly effective, despite the strong, but
misguided, belief of politicians that they can use public money to
buy electoral success.
