What to do about pork-barrelling … aka misuse of public money … NSW’s ICAC makes suggestions … Report inspired by Aunty Glady’s fund for securing marginal seats … Max Shanahan reports
The NSW Independent Commission Against Corruption has laid down the law to politicians tempted by the electoral delights of pork-barrelling, finding that the partisan allocation of public funds to targeted electors may constitute corrupt conduct.
Curiously, until now, neither ICAC nor any other Australian anti-corruption body has made a finding that pork-barrelling is corrupt.
Quoting the House of Lords’ appropriation of Twelfth Night in Porter v Magill, the commission agreed that “like Viola’s ‘worm i’ the bud’ [pork barrelling] feeds upon democratic institutions from within.”
The commission’s investigation into pork-barrelling grew from complaints it received over the Berejiklian government’s use of the Stronger Communities Fund, which distributes money to local councils for small projects.
An auditor-general’s report into the scheme found that 96 percent of grants went to government-held electorates, while record-keeping was often suspiciously lacking.
The premier’s department was sprung, with a briefing note admitting that the SCF was used to “get cash out the door in the most politically advantageous way”.
The sheer amount of reports issued by the government (the Auditor-General, Public Accountability Committee, State Archives and Records Authority, and the Department of P&C each had their say on the SCF) persuaded the ICAC to shift focus from making findings against individuals, to an inquiry on pork-barrelling more broadly, and whether the practice constitutes corrupt conduct within the meaning of the ICAC Act.
While the Commission declined to focus on individuals, it nevertheless made pointed comments about the attitudes of certain politicians:
“The former NSW premier Gladys Berejiklian was reported in 2020 as saying the pork-barrelling was ‘not an illegal practice’. The former prime minister Scott Morrison, was recently reported as saying [in relation to pork-barrelling] ‘No one is suggesting anyone has broken any law, are they?’
Instead of the term “pork barrelling”, Geoffrey Watson SC, from the Centre for Public Integrity, prefers the description “misuse of public funds” – which can amount to misfeasance in public office if there is an improper motive.
The commission was at pains to note that local member advocacy, and the necessary exigencies of politics, are not excluded by a finding that pork-barrelling can be corrupt conduct:
“Politicians have a legitimate interest in their own election or re-election and … are entitled, in some circumstances, to allow their political objectives to have some effect on the decisions they make.”
However, in the view of ICAC, altruistic advocacy turns to corrupt conduct only in “serious” and “wilful” cases of pork-barrelling, suggesting that the improper motive – allocating public funds for partisan political purposes – must be the dominant reason for making the suspect funding decision. Anything below this bar may still amount to a breach of public trust.
In her submission to the commission, Professor Anne Twomey made extensive reference to Dennis Mahoney remarks in Greiner v ICAC to explain the difference between acceptable political and non-political exercises of executive power:
“While [Mahoney JA] acknowledged that parliament may enact legislation to achieve political ends and that political factors may sometimes fall within proper purposes in the exercise of executive power, he stressed that the ends for which executive power may be exercised are ‘limited by the law’ … He also later noted that if an official is given power to allocate money to encourage cultural activities, and distributes it to ‘persons or bodies apt to support a particular political party – or to procure that they do so’, this too would involve the misuse of a public power.”
As ICAC made clear, no minister has complete discretion to make funding decisions according to their own personal wishes or political advantage.
The excuse regularly rolled out by porking pollies – that their decisions benefit the community and do not line their own pockets – was similarly swept aside by the commission, adopting Twomey’s stance that, “It is the abuse in the exercise of the power … which is relevant, rather than the end achieved”.
The commission ultimately made a range of recommendations, supplementing those made in an earlier government report – including amendments to the Government Sector Finance Act to bring it in line with its Commonwealth equivalent and require that a minister not approve expenditure unless satisfied that it would be “an efficient, effective, economical and ethical use of the money”.
Further, it was recommended that the Ministerial Code of Conduct be updated to require ministers to “not act dishonestly … act in the public interest [and] not act improperly for their private benefit or the private benefit of any other person”.
One might have presumed these to be basics.
The commission’s report – if politicians care to listen – may bring to an end one of the finest eras of pork-barrelling NSW has seen.
Will we ever see again the likes of John Pork-Barrel-aro – author of such famous quotes as “I’m sick to death of the mistruths spun about pork-barrelling” and pork-barrelling is what “elections are for”?
Indeed, the commission’s groundbreaking finding, alongside its critical assessment of federal politicians, could lay the groundwork for a similar approach at the long-awaited federal integrity body.