It’s simple: pork-barrelling is corruption — ethically and legally. But proving it?

Attorney-General Mark Dreyfus is correct that a federal ICAC should investigate pork-barrelling, and that pork-barrelling is corruption. In fact, it is imperative that the new government seize on the growing momentum against the capacity of politicians to abuse discretionary grant programs, which has emerged in NSW.

In the wake of the extraordinary pork-barrelling of the Berejiklian-Barilaro government, the Perrottet government has committed to end the practice and has commissioned a review of grants administration, and the NSW ICAC is also examining pork-barrelling and its relationship with corruption as well.

This is a turning point in public administration that could see the drastic curbing of one of the foulest blights on government — anything less than a broad remit to examine pork-barrelling would be a failure by the federal government.

A key document in the NSW ICAC review is a paper by prominent legal academic Anne Twomey that examines the link between pork-barrelling, criminal conduct and corruption, using NSW legislation as her basis but also examining federal pork-barrelling. Twomey demolishes two of the key arguments advanced by politicians that justify pork-barrelling:

• courts have found that misconduct does not have to only be about abusing an official position for pecuniary gain — that is, the distinction made by politicians between decisions that help their party, and decisions that help themselves individually, is spurious. In any event, Twomey points out, ministers and shadow ministers have a direct financial interest in winning their seats and winning elections for their party — thus blurring any such distinction anyway
• it doesn’t matter if a decision achieves some valuable public end as well as being an abuse of power: “breach of public trust can also occur, even when the actual outcome of a decision achieves a valuable end. It is the abuse in the exercise of the power, being an exercise for an improper purpose, which is relevant, rather than the end achieved”.

Such breaches of trust may or may not breach criminal law or fall within the NSW ICAC’s remit — for one thing, they have to be “serious” breaches — but Twomey notes the use of the word “partial” in both jurisprudence and the NSW ICAC act, and its applicability both to statutory appointments and to grant allocation. Pork-barrelling is a partial allocation of funding, in the sense that it is not an even contest between applicants, regions or electorates; that merit is not the guiding principle behind allocation, but partisan interest.

But as Twomey notes, “difficulties arise where there are mixed motives”. An act might be motivated by both the public interest and partisan interests — indeed, one would hope the entire nature of politics was shaped by a desire for politicians to keep being reelected by serving the public interest well. This grey area was picked up by NSW ICAC commissioner Peter Hall, who last week held up the example of Berejiklian’s heavily rorted Stronger Communities Fund of something that “crossed the line”: “you couldn’t have it any clearer than that as to what the motive was … sole purpose of that exercise was political or electoral and that’s clearly on the other side of the line”.

In that case, however, there was actual documentary evidence that staffers and ministers were spending the money for political benefit. Such evidence will be atypical — especially from now on — thus making the resolution of “mixed motive” cases harder. “A significant difficulty in bringing prosecutions for misconduct in public office is the burden of establishing an improper purpose. There will commonly be insufficient evidence to found a prosecution,” Twomey says.

One solution might surely be that decisions motivated predominantly by personal or political interest would be corruption, regardless of what public interest they might have been intended to serve. But the burden of proving improper purpose will remain. That’s why we need greater separation between decision-making and ministers and their offices. A federal ICAC must go after pork-barrelling politicians. But it would be better if such politicians are prevented from being able to decide grant allocation in the first place.