Pork barrelling – common practice or corrupt?

On 3 June 2022, the NSW Independent Commission Against Corruption (ICAC) held a forum examining the legality and ethics of pork barrelling in politics. Hosted by ICAC Chief Commissioner Peter Hall QC, the forum discussed whether pork barrelling could be deemed corrupt conduct under provisions of the Independent Commission Against Corruption Act 1988 (NSW) and the constraints (if any) on Ministerial discretionary powers in relation to grant funding.

Unsurprisingly, the forum has come at a time where there is increasing pressure to introduce a new federal integrity agency, and include pork barrelling as part of a wider definition of corruption. Below, we unpack the current regulations regarding pork barrelling at both the federal and state levels of government and the changes that may lie ahead.

What is pork barrelling?

Pork barrelling refers to the exercise of public powers for an improper purpose in a biased manner in an attempt to achieve a favourable political outcome. The process has often been used to target specific electorates with taxpayer cash to garner votes in marginal seats and encourage a generally positive disposition towards a certain political party. Pork barrelling is hardly new to Australian politics, and it is certainly not confined to any one level or party of government. In 2018, data collected from the Australian Electoral Commission and the Federal Department of Infrastructure revealed that marginal electorates receive three times more funding than safe seats.1

Parliamentary duties

It is well-recognised that governments are required to act in the public interest, and this extends beyond the executive government to Ministers and Members of Parliament in exercising their duties. In reinforcing this obligation, courts have consistently reiterated that parliamentarians have an "inescapable obligation to serve the public with the highest fidelity",2 and must be uninfluenced by "personal financial considerations".3

Allegations of pork barrelling

At the federal level, some of the more memorable examples of pork barrelling include Minister Ros Kelly's use of a whiteboard to determine the distribution of sports grants, known as the first 'sports-rorts affair', under the Hawke Labor Government in 1993, and the Howard Coalition Government's grant distribution under the Regional Partnership Program between 2003-2007.

Closer to home, the NSW state parliament is also no stranger to participating in pork barrelling tactics. We only need to cast our minds back to 2020 when the then Deputy Premier John Barilaro coined the nickname "Pork Barrel-aro" in relation to his distribution of infrastructure grants to arts and cultural organisations in regional NSW, or then Premier Gladys Berejiklian's infamous allocation of grants to local councils from the Stronger Communities Fund.

What the ICAC Forum has recently heard though, is the alarming level of misunderstanding amongst parliamentarians about the legality of pork barrelling. University of Sydney constitutional law professor Anne Twomey drew the forum's attention to the fact that many politicians have not been taught administrative law and the associated limits on Ministerial powers. As a result, it is unsurprising to hear some public officials argue that "throwing money at seats to keep them" is just a part of democracy, and "not an illegal practice".

Current accountability mechanisms

Before considering any possible changes to the legality of pork barrelling, it is useful to examine the existing rules and guidelines regarding pork barrelling. The duty to act in the public interest is reflected in both the Constitution and the common law. Sections 44 and 45 of the Constitution provide for the disqualification of Ministers who receive a financial benefit, or have a pecuniary interest in an agreement with the Public Service of the Commonwealth. Additionally, the common law duty was recently reaffirmed by the NSW Court of Criminal Appeal in its finding that parliamentary duties are not merely a matter of conscience and can indeed be subject to legal sanction.4

Currently, alleged pork barrelling is dealt with via judicial review in accordance with administrative law. The drawback here is that judicial review only determines whether the administrative decision was made lawfully, rather than assessing the merits of the decision itself. This is an appropriate mechanism where a public official has acted in good faith, but merely made a mistake in the exercise of their power. What judicial review lacks however, is the ability to deal with, and deter, the deliberate misuse of public power. It is this very issue that has recently piqued ICAC's interest.

Federal law

At the federal level, the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs) regulate Ministerial expenditure of public money. These instruments clearly stipulate that Ministers must only approve a 'proper use' of expenditure, however there are numerous loopholes which permit their avoidance. For example, far too often 'election promises' are made to fund infrastructure or make grants within an electorate without actually assessing the value or feasibility of the project for the community. The ICAC forum has heard that these loopholes, in conjunction with the fact that a breach of the relevant PGPA provisions can only amount to a challenge under administrative law, appears to have fostered an unfortunate culture of turning a 'blind eye' when it comes to pork barrelling.

NSW state law

At the state level, the Government Sector Employment Act 2013 (NSW) outlines a series of 'core values' Minsters are guided by, including placing public interest over personal interest, and administering funds in a fiscally responsible way. Notably however, there does not appear to be any NSW legislative equivalent to the PGPA's requirements that expenditure must only be approved if the Minister is satisfied that it would be an "efficient, effective, economical and ethical use of the money" (section 71 of the PGPA). Similarly, the 'Good Practice Guide to Grants Administration', being the state equivalent of the CGRGs, acts as no more than a guide for Ministerial powers, and lacks any significant legal standing.

As a consequence of the current regulation, or apparent lack thereof, the ICAC forum heard that public officials seem to have become less inclined to comply with good practice standards, and more partial to turning that 'blind eye'.

So, what next?

As a first step towards changing the culture of pork barrelling, the Department of Premier and Cabinet and the NSW Productivity Commissioner has recently released the 'Review of Grants Administration in NSW' report 2022, which is intended to replace the 'Good Practice Guide to Grants Administration' and apply to all Ministers and Ministerial Staff. Some of the key recommendations include:

  • identifying and documenting roles and responsibilities in the grant-making process
  • publishing clear sets of guidelines and the associated selection criteria for each grant to promote transparency
  • the guidelines should adopt a "flexible" legal status to ensure they can be readily updated with "evolving best practice".

Notably however, in contrast to the dominant sentiment heard before the ICAC forum, the report falls short of saying that pork barrelling should be an offence.

Among other options for reform, the ICAC forum heard that in addition to the 'values' outlined in the Government Sector Employment Act, there should be clear legal obligations imposed on public servants regarding the management of grant schemes. This would legally oblige public servants to act in an impartial, economical and ethical way to serve the public interest and act as a disincentive to engage in potentially corrupt conduct.

Following the forum, the ICAC is now preparing a report on its views on pork barrelling, including whether and how it relates to corrupt conduct. There is no date yet on when the report will be released, but if Peter Hall QC's opening remarks to the forum which deemed a healthy democracy as one with strong, well-resourced integrity commissions to act as guardians at the gate are any indication of the changing attitudes to come, we can certainly deduce that change is coming.

Footnotes

1 Amy Dale, 'Pork barrelling: past its use-by date?' (2021) 76 Law Society of NSW Journal.
2 Hocking v Director-General of the National Archives of Australia [2020] HCA 19 [243].
3 Re Day [No 2] (2017) 263 CLR 201 [49].
4 Obeid v R [2017] NSWCCA 221 [62].

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