Drink Tank

Who calls the shots? – Don’t mention the “C” word

It should come as no surprise that those who trivialise our nation’s deadly alcohol toll or seek to inculcate and normalise alcohol into every aspect of Australia’s culture, regardless of the true cost, are the very same who profit from its promotion and consumption.

This truism was borne out by the undue influence of the powerful alcohol industry, Australia’s second largest political donor, on its invited revision of the overdue National Alcohol harm prevention strategy (NAS). This represented a prima facie conflict of interest.

My research on regulatory capture at the University of Newcastle was recently published in the Journal of Law and Medicine and reflected in a submission to the NSW ICAC’s Operation Eclipse on political lobbying currently underway. It analyses the process whereby powerful well – connected industries exert undue influence to effectively control or ‘capture’ the policy development and law-making process. Law making is constitutionally obligated to protect and serve the ‘public interest’ including public health and safety, the environment etc.

Critical to the capture process analysed in my research are the presence of complicit elected law makers, evidence of reciprocal exchange of favours – for example, a pattern of large political donations, revolving doors between political appointments and very lucrative industry positions – in exchange for laws and enforcement practices demonstrably favouring commercial private interests over the public interest and, a lack of transparency and public/independent expert inclusiveness.

Capture can only occur in political regulatory environments that devalue honesty, integrity, probity, governance and accountability. Few may disagree that the recent cacophony of Banking Royal Commission evidence and findings, the Crown Casino affair and now, the Federal government’s belated rejection of leading independent medical expert advice concerning the NAS – in favour of the alcohol industry’s self-serving recommendations, provides sufficient evidence of the magnitude of ethical and moral corruption entrenched in our supposed democratic system. Government by commercial industry – for industry.

Whether it’s the draconian nature of our defamation laws and/or the prudence of some of our acclaimed independent researchers and commentators, very few have been willing to label this pattern of conduct between powerful industries and grateful indebted political parties that undermines the overall public interest – our common wealth, as ‘corrupt’.

It is time we all called this conduct for what it really is.

The lack of support for a powerful, independent and broad ranging National Integrity Commission by our major political parties is proof of their unwillingness to take decisive action against their golden geese. It will perpetuate avoidable public exposure to intolerable levels of primarily preventable alcohol, gambling, unhealthy food harms, environmental degradation and plethora of other lost opportunities.

In McCloy v New South Wales the High Court of Australia provided invaluable but ignored guideposts to all Australian Parliaments and their citizens of the contemporary nature of corruption that relates to the above illustrations of sustained undue influence of large political donors in return for favours.

‘the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder … quid pro quo and clientelistic corruption threaten the quality and integrity of governmental decision-making, but the power of money may also pose a threat to the electoral process itself.  This phenomenon has been referred to as “war-chest” corruption’ [2015] HCA 34, 13 -14, 62

With the NSW ICAC’s lobbying inquiry and the development of independent proposals for an effective National Integrity Commission, neither of these two initiatives’ background papers appear to sufficiently reflect the seriousness and magnitude of regulatory capture.

Out of the Crown Casino and NAS imbroglios must arise fundamental law, political culture and institutional reforms. The starting point is ensuring a potent national legal definition of corruption and a new agency addresses the endemic reality of regulatory capture that extends well beyond the limits of any one State or Territory.

Tony Brown

Tony Brown is a PhD (Law) Scholar, Conjoint Fellow School of Medicine and Public Health, University of Newcastle. He is the Chairperson of the Newcastle and Hunter Region Multicultural Drug Action Teams. He voluntarily led and represented around 150 local residents, small businesses and concerned citizens in the complex legal proceedings initiated by the Police that led to the “Newcastle conditions”.

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