Testing the thesis . . . Rampant cronyism and corruption (continued)
The Iraqi wheat-for-weapons scandal was set to reignite headlines again in 2016 with former Australian Wheat Board – A.W.B. chair Trevor Flugge due to face court in a lengthy civil trial examining his central involvement in the bribes controversy. A.W.B.’s former group general manager trading Peter Geary was also listed to have his case heard during the same court proceedings.
The two former A.W.B. executives are facing a civil trial for allegedly inflating wheat supply contracts and making secret payments to the Saddam Hussein regime. (‘AWB made secret payments worth US$220m to Saddam’s Iraq, court hears’).
The mid-2000s scandal involving Prime Minister Howard, Foreign Minister Downer, and Trade Minister Vaile does not seem ‘to go away’.
It was thought at mid-2009 that the reason why Australia had slipped down the international anti-corruption rankings was because of the A.W.B. Oil-for-Food scandal.
Transparency International keeps on lamenting that many governments simply are not putting enough effort into curbing bribes. Some years ago the organisation evaluated the efforts member countries were making to uphold the O.E.C.D.’s Anti-Bribery Convention. Australia did come out in the bottom category, criticised for carrying out little or no practical enforcement against bribery offenses by national businesses operating overseas. That was a category shared by 21 O.E.C.D. countries, as diverse as Turkey, Brazil and Canada. Only four countries were in the top tier, cited for active enforcement, with eleven in the middle with moderate enforcement. In such a climate there was a risk that, unless enforcement both improved and became more uniform across countries, the Anti-Bribery Convention could become irrelevant. A convention like this cannot afford to fail, otherwise it becomes one of those international conventions which are more valuable on paper than in practice.
Especially over the decades prior to the Convention, multinational corporations have helped bribery and corruption become a much worse problem especially in developing countries. As the multinational corporations, especially American and European, went abroad to countries which were vulnerable, the scale of the bribes increased – greedy officials would demand more from foreign investors.
This was particularly a problem in the resources sector, and distorted several national economies.
The Transparency International reports look at how many foreign investment corruption cases have gone to court, year by year – and how many had resulted in convictions. While not specifically including bribes, Australia’s biggest overseas corruption case for 2009 was the Iraq Oil-for-Food scandal and the Australian Wheat Board. Six cases were at the time in the civil courts, but none had yet resulted in convictions – and the recommendations from the Royal Commission into the affair had not been followed up. The lack of results had placed Australia in the bottom group. Countries like the United States and Germany, which have both prosecuted several cases, served as a clear contrast in the top category.
Clearly the A.W.B. scandal would not go away, no matter what the Howard Government would do. It was the prevailing opinion that, apart from that scandal, the government itself was incompetent, dishonest and corrupt. It has been proven so in relation to its accountability and other processes following the discovery of restricted and secret intelligence reports and communications between various Australian embassies, trade officials, the United Nations, Australian public servants and the Australian Prime Minister, the then Minister for Trade, who was also Deputy Prime Minister, and the Foreign Minister and their Departments in relation to the A.W.B. scandal.
New evidence and supporting material had come to light during an independent investigation into claims that Members of Parliament were holding ‘dirt files’. The ‘dirt files’ claims were proven but in the process of the investigation, and a substantial amount of material related to the A.W.B. scandal as well as documents related to other issues were discovered. The A.W.B. material was held by various Australian agencies and had not been brought to the attention of the Royal Commission looking into the bribes provided to the former Iraqi regime through a straw company in Jordan.
The material showed that, in fact, senior Government ministers were told on a number of occasions that the A.W.B. was providing bribes to Saddam Hussein and his regime, contrary to the provisions of the United Nations Oil-for-Food programme. Copies of confidential and secret diplomatic cables, memoranda, e-mails and other material were found showing that both the then Minister for Trade as well as the Foreign Minister, had received numerous detailed intelligence and other briefings very early on into the scandal. They did nothing. The Foreign Minister noted in one secret memorandum to the Australian Embassy in Jordan that: “No-one will ever find out anyway”. The then Minister for Trade was also advised on a number of occasions as to what was going on. Prime Minister Howard was also briefed on the matter by the various agencies including the Office of National Assessment – O.N.A., as well as the Australia’s international spy agency – A.S.I.S.
The same Howard Government which had kept silent over what it knew of the Oil-for-Food scandal set out ‘to detect, investigate and prevent corrupt conduct’ through the newly formed Australian Commission for Law Enforcement Integrity – A.C.L.E.I., with an Office of the Integrity Commissioner.
The Commission was established by an Act of Parliament in 2006, and placed under the responsibility of the Home Affairs and Justice Minister. The Australian Commission for Law Enforcement Integrity’s role is to detect, investigate and prevent corruption in the Australian Border Force, Australian Crime Commission, Australian Federal Police (including ACT Policing), Australian Transaction Reporting and Analysis Centre (AUSTRAC), CrimTrac Agency, prescribed aspects of the Department of Agriculture, Department of Immigration and Border Protection, and the former National Crime Authority. Other agencies with a law enforcement function may also be added by regulation. A.C.L.E.I’s primary role is to investigate law enforcement-related corruption issues, giving priority to serious and systemic corruption. The Integrity Commissioner must consider the nature and scope of corruption revealed by investigations, and report annually on any patterns and trends in corruption in Australian Government law enforcement and other Government agencies which have law enforcement functions. Accordingly, A.C.L.E.I collects intelligence about corruption in support of the Integrity Commissioner’s functions. A.C.L.E.I. also aims to understand corruption and prevent it. When, as a consequence of performing her/his functions, the Integrity Commissioner identifies laws of the Commonwealth or administrative practices of government agencies which might contribute to corrupt practices or prevent their early detection, s/he may make recommendations for these laws or practices to be changed. Any person, including members of the public and law enforcement officers, can give information to the Integrity Commissioner. Information can be given in confidence or provided anonymously.
Well Juvenal could ask: Quis custodiet ipsos custodies? – “Who will guard the guards themselves?”
After all, who would know about a little bit of corruption work, promoted by ‘benevolent’ organisations such as the one rendered public by the Victoria Ombudsman in March 2011. And the innocent name? – The Brotherhood. The ‘brothers’ meet for lunch, to hear a guest speaker and then to engage in a bit of ‘networking’.
What the Ombudsman discovered about The Brotherhood confirmed the widely held conviction that its activities undermine the community’s confidence in public institutions.
Invitees from a list of up to 350 influential people had been attending the lunches every six weeks since the first one was held in 2003. The guests are all men, and the Chatham House Rule applies, i.e. “What is said in the room stays in the room.”
The host has been from the beginning the founder, a former policeman between 1988 and 1999, who had come to the attention of the Police Internal Investigations Department for, among other transgressions, assaulting a member of the public, and fined $ 200. He came to head two private companies. The founder started the lunches with the statement: “We are all members of The Brotherhood and we must assist each other.”
A whistleblower told the Ombudsman that “[the founder’s] motivation for the formation and maintenance of this group is to, amongst other things, provide an environment to facilitate unlawful information trading including confidential police information and other confidential information from government departments. This is in addition to gaining commercial benefits and inside information regarding contracts for tender.”
On the invitation list were two ‘Liberal’ State MPs, many current and former police officers including one with alleged links to an organised crime figure. A former Australian Wheat Board executive involved in the Oil-for-Food scandal was on it, too. So was the manager of a licensed table top dancing venue frequented by Victoria Police officers.
Some of the public servants attending maintained databases of sensitive information. It seems that a regular attendee, a senior Victorian Police officer, disclosed the identity of a prosecution witness in a high profile murder trial, contrary to a Supreme Court suppression order. One member used his position at the Traffic Camera Office to annul over $ 2,000 worth of speeding fines accumulated by the founder and persons of his companies. The ‘operator’ denied any wrongdoing but the case was recommended to police for investigation.
The example of The Brotherhood is not unique. The Ombudsman’s report cited the New South Wales Independent Commission Against Corruption’s investigations into the ‘Information Exchange Club’ in 1992. This could be added to the mountain of damning reports and inquiries including Royal Commissions into various state Police forces over the decades. Nothing ever seems to happen. ‘Revolving door’ appointments involving positions on boards for retiring, previously highly placed politicians have become routine.
Of course, the preceding are just some examples of unlawful behaviour. The most notorious scandals of the last decade include: Trio Capital; the Commonwealth Bank financial planning scandal; CommInsure; the ANZ insider trading scandal; the bank bill swap rates fixing scandal, which now involves three of the big four banks; Storm Financial; Opes Prime; the Financial planning scandals at Westpac, NAB and Macquarie Private Wealth; the LM Investments; Bribery allegations against ASX boss Elmer Kunke Kupper; the “managed investment schemes” (MIS) fiasco (Timbercorp, Great Southern); the Insider trading between an ABS bureaucrat and a NAB banker; and the Reserve Bank Securency scandal.
Perceptions of corruption in the Australian government and public sector increased in 2015 for the fourth year running, surging six points since 2012 in an annual index by Transparency International.
The result put Australia in thirteenth place globally for perceived openness, the country’s equal lowest ranking in the 20-year history of the report.
The annual index, which ranks 168 countries on a scale of 0 – highly corrupt to 100 – very clean, is compiled from 12 surveys of transparency experts and business people.
Australia’s 2015 score was 79, down from 80 last year. Denmark came in first with 91, followed by Finland (90), New Zealand (88) and the Netherlands (87). North Korea and Somalia ranked last with eight points each.
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Brazil suffered the biggest fall, dropping five index points amid a bribery and money-laundering scandal engulfing its state-owned oil company, Petrobras, that has drawn in some of the country’s most senior politicians.
Libya, Spain and Turkey were singled out with Australia as “big decliners”, with Greece, Senegal and the United Kingdom praised for their progress.
The chair of Transparency International Australia, Anthony Wheatley QC, said that Australia’s score was “the result of inaction from successive governments who have failed to address weaknesses in Australia’s laws and legal processes.”
Foreign bribery scandals such as those involving the Australian Wheat Board and Securency had damaged Australia’s reputation and legislation introduced into parliament in December  was “long overdue.” he said.
Transparency International also called for a federal anti-corruption agency with similar powers to the NSW Independent Commission Against Corruption; a nationally consistent and tighter political donations disclosure regime; and safeguards against dirty money from overseas bleeding into the Australian finance or real estate industries.
Muscular anti-foreign bribery laws and political donations reform were required to help arrest the slide. Wheatley said addressing weaknesses in government would also raise the bar for the private sector.
The links between public institutions and big business interests – both mainstream and underworld – are becoming well known to the public, but one would be an optimist for thinking that anger at the seemingly endless stream of scandals is growing. It is pressure from the community which leads to the inquiries. It is in response to this same outrage that instrumentalities like the state-based Independent Commissions Against Corruption were established.
The demand on big business to abide by their State ‘rule of law’ is certainly justified; and the fight to bring business ‘operators’ to heel must continue. But so long as governments rule on behalf of corporations and the real power in society belongs to an oligarchy the battle will never be successful.
Tomorrow: Testing the thesis (continued) . . . Fraudulent elections
* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.
Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra. He may be reached at George.Venturini@bigpond.com.au.
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