'Integrity of Purpose: A Legal Process Approach to Designing a Federal Anti-Corruption Commission' by Grant Hoole and Gabrielle Appleby in (2017) 38(2)
Adelaide Law Review 397
draws
from traditional legal process theory to advance a methodology for the design of a federal anti-corruption commission. Legal process theory stresses the dynamic, evolving, and interactive nature of legal institutions within a systemic context. It highlights the fact that the strength of legal systems depends upon their institutional components functioning harmoniously according to purpose, and observing appropriate institutional boundaries. Drawing from the legal process literature, we articulate a theory of ‘integrity of purpose’: a vision of how institutions can be designed to fulfil their roles through simultaneous pursuit of their mandates and cognisance of their boundaries. We then apply integrity of purpose to inform design choices surrounding several aspects of a potential federal anti-corruption commission: its normative purpose, investigative jurisdiction, and power to conduct formal hearings and issue findings. Our approach treats questions of institutional purpose as inseparable from questions of procedure, and presents a novel means of translating legal analytic principles into a forward-thinking framework for institutional design.
The authors argue
The time is ripe for a renewed conversation about the purpose and design of standing anti-corruption commissions across Australia. Such commissions have been prominent fixtures in Australian public and political life at the state level for more than three decades. Their creation in the 1980s and 1990s followed the sweep of ‘new administrative law’ reforms designed to strengthen and increase the accessibility of public accountability mechanisms. Since that time, each state has created a standing anti-corruption commission, and there has been ongoing debate about their proper role and conduct. The Commonwealth government has resisted calls for it to create a federal commission, but in the wake of recent bribery, expenses and foreign donations scandals, pressure to do so is growing.
Any civic institution having the lifespan, profile, and influence of Australia’s anti-corruption commissions is bound to attract ongoing critical attention. For the most part, this is a good thing: revisiting foundational questions of institutional design is essential to ensuring that anti-corruption commissions remain relevantly faithful to their animating values and limits. Such debates offer a rich and informative base from which to derive questions of institutional purpose and design for a possible federal body. These questions include:
1. What precisely is the impropriety against which standing anti-corruption commissions are directed?
2. How should commissions be integrated with the existing mandates, powers, and activities of institutional counterparts, including, for instance, the police and the processes of criminal law?
3. Should jurisdictional concepts like ‘corruption’ and ‘integrity’ be cast broadly, allowing commissions latitude to investigate and address wrongdoing of diverse varieties, or narrowly, confining the powers of commissions to highly specific mandates?
4. What powers do commissions require to achieve their objectives?
5. Are the specified institutional objectives of commissions best advanced by undertaking their functions in public or in private?
6. To what extent should the pursuit of those objectives be balanced against possibly
harsh effects of the exercise of the commissions’ powers on individuals?
7. How can institutional design reconcile the pursuit of the commissions’ objectives with higher-order public law principles, including natural justice?
There are no straightforward answers to these questions, and their resolution will ultimately depend on balancing a range of competing priorities in context. That process will nevertheless be aided by linking specific design decisions to coherent and consistent base principles which reflect the commission’s essential purpose and its fidelity to values latent in Australia’s legal system (and indeed, in the very idea of the rule of law). To this end, we offer an approach rooted in legal process theory.
Legal process theory describes a field of analytic jurisprudence that held broad influence over American legal scholars in the middle of the 20th century. By focusing attention on the manner in which procedure simultaneously enables and bounds public purposes, the legal process school presents a distinct and very pragmatic way of understanding legal institutions and their interrelation. We employ principles from that school to advance our own theory of integrity of purpose: a vision of how institutions can be designed so as to fulfil their roles through simultaneous pursuit of their mandates and cognisance of their boundaries.
While the legal process tradition has fallen into relative desuetude, its influence is felt in many familiar legal approaches, including in the conventional account of statutory interpretation, in ascertaining questions of jurisdiction, and in reconciling discrete legal outcomes with higher order principles of law. What our unearthing and deployment of traditional legal process theory reveals is that these methods are useful not only to conventional legal problem-solving, but to informing proactive, pragmatic, forward-looking decisions in the design of legal institutions themselves. It is this goal that we pursue in applying our integrity of purpose approach to advance design features for a future federal anti-corruption commission.
In Part II, we introduce legal process theory and link its tenets to recent scholarship on the ‘integrity branch’ in Australian law. Legal process theory helps to shed light on the dynamic, interactive, and evolving nature of institutions comprising the integrity branch. We incorporate each of these ideas into our theory of integrity of purpose, outlining an analytic to guide the introduction of new integrity institutions to an existing governance landscape. In Part III, we apply integrity of purpose to address a series of design questions that accompany the creation of a federal anti-corruption commission. Our account moves from the theoretical to the practical: having shared a legal process account of what it means for legal institutions to embody distinct purposes and honour intended boundaries, we offer a series of specific recommendations about the powers and procedures of a new federal commission. Several of these recommendations challenge the current design and conduct of anti-corruption commissions at the state level.
The article can be usefully read alongside the Griffith study noted
here.
