In January, Accountability Round Table made a submission to The Independent Broad-based Anti-corruption Commission Committee. This committee is a joint investigatory committee of the Parliament of Victoria and has a number of functions including monitoring, reviewing and reporting to Parliament on the performance of the Independent Broad‑based Anti‑corruption Commission.
As part of that function, the committee invited submissions on Strengthening Victoria’s Key Anti-corruption Agencies.
Our submission, linked below the following introduction, is our response.
SUBMISSION OF THE ACCOUNTABILITY ROUND TABLE REGARDING THE INTEGRITY AND ACCOUNTABILITY LEGISLATION AMENDMENT (A STRONGER SYSTEM) BILL 2015
We thank the Committee for the invitation to make a written submission on how the reforms proposed in the above Bill may impact on the work and functioning of IBAC, the Victorian-Inspectorate and Victoria Police.
The focus of this submission ART’s primary concerns were, and are, about the content and operation of the IBAC legislation and the proposed amendments contained in the Bill. In relation to that, this submission will respond to the particular issues raised in the invitation, namely,
A. Whether the Bill introduced into the Parliament will address the concerns we raised regarding the current legislation and, if it does not, the implications for the function and operation of the IBAC.
B. To outline any changes that have been made by the Bill that may raise additional concerns
C. To outline the overall impact of the Bill on the effectiveness of the IBAC
Accompanying this document above, ART also sent a synopsis of the legislative changes necessary to strengthen IBAC, reproduced below.
THE AMENDMENTS RECOMMENDED BY THE ACCOUNTABILITY ROUND TABLE AS NECESSARY FOR THE IBAC LEGISLATION
1. The decision of the High Court in the Cunneen matter demonstrates the critical importance of the definition of “corrupt conduct” in anti-corruption legislation and in delineating the proper ambit of the investigatory powers of a commission such as the ICAC or the IBAC. Given the extraordinary nature of the powers such a body must have to be effective against corruption, the High Court has clearly demonstrated that it will give a narrow interpretation to such legislation. It is of the utmost importance that a body such as IBAC be able to use the full range of its powers once it has reason to investigate suspected corruption, and that suspects do not have ready access to a court to stay such an investigation. Experience has shown that well-funded suspects will use any means available to obstruct such investigations, and hide or destroy evidence or otherwise impede an investigation in doing so.
2. The ICAC Act defines “corrupt conduct” very broadly in ss.7, 8 and 9 of the Act, while by s.12A requiring ICAC as far as possible to direct its attention to serious and systemic corrupt conduct. The wording of the sections leaves it to the discretion of ICAC in effect to decide what to investigate.
3. The IBAC Act defines “corrupt conduct” in s.4, a “relevant offence” is defined in s.3 and s.60(2) prevents IBAC from conducting an investigation unless “it is reasonably satisfied that the conduct is serious corrupt conduct”.
4. The effect of these sections is to limit IBAC’s permitted area of investigation to a very small field, which does not even include misconduct in public office, and IBAC is prevented from commencing an investigation unless it is able to articulate facts which if proved at a trial would amount to one of the very few offences within the definition of a “relevant offence”. IBAC’s officers are told that they cannot commence an investigation unless they have sufficient facts to identify an indictable offence, the effect of which is that they cannot commence an investigation unless they have been given detailed information by a well-informed whistle-blower; that is to say they cannot investigate a matter unless they already know exactly what it is that they wish to investigate, which is obviously absurd.
5. The amending legislation proposed by the Baillieu /Napthine government in 2014 contained proposals to include the offence of misconduct in public office in the definition of relevant offence, which was clearly necessary. But it then sought to introduce a distinction between preliminary and full investigations, the effect of which was that
- (a) IBAC could not use its complete range of investigatory powers in determining whether to investigate a matter in a preliminary investigation;
- (b) IBAC could still only use its full powers once it was able to articulate a state of facts which would constitute a relevant offence, thus retaining the original absurd threshold.
The amending legislation gave IBAC power (which had not been previously expressed but was properly taken by IBAC’s Commissioner and staff as necessarily implied) to conduct preliminary investigations and also introduced mandatory reporting provisions in relation to various investigatory bodies (e.g. the Auditor-General and the Ombudsman) requiring them to report suspected corruption to IBAC.
- The amendments which, in light of the foregoing, are necessary if the IBAC Act is to give IBAC the necessary legislative basis for its investigations are –
- (a) The definition of “corrupt conduct” in s.4 of Act must be changed to give IBAC the proper jurisdictional base for its investigations into possible corruption, while leaving a discretion to the IBAC Commissioner to refuse to investigate matters which in the Commissioner’s view are not serious or systemic;
- (b) a section such as s.12A of the ICAC Act should be included, and s.60(2) of the present IBAC Act removed;
- (c) in any amendments to the definition of “corrupt conduct” the words which presently conclude s.4(1) of the IBAC Act (“being conduct that would, if the facts were found proved …..”) must be removed, and phrases such as “conduct ….. that adversely affect the honest performance by public officers” (see s.4(1)(a) of the IBAC Act) must be amended to ensure that the decision of the High Court in the Cunneen matter cannot be replicated against Victoria’s IBAC;
- (d) if the expression “relevant offence” is to be retained in the IBAC legislation, its definition must be substantially enlarged to include “misconduct in public office”, and also at least a number of the offences included in ss.8(1) and (2) of the ICAC Act.
6. It is unnecessary to introduce into the IBAC legislation the concept of preliminary investigations, or to authorise in the limited manner proposed an entitlement for IBAC to conduct such preliminary investigations. The ICAC has never been given or needed such an authority. Introducing such a distinction would merely create another threshold for IBAC to overcome, and would provide a suspect with another avenue for obtaining judicial intervention to delay or prevent an investigation.
7. The amendments to the IBAC Act should include the mandatory reporting to IBAC of corrupt conduct by the various bodies included in the 2014 amending legislation and the provisions clarifying the powers of delegation allowing IBAC to appoint suitably qualified persons to preside at an examination and allowing IBAC to apply to the Magistrates’ Court for a search warrant.
8. The Ombudsman Act contains provisions (in s.29) which protect the Ombudsman from being prevented from continuing an investigation which has been commenced unless there is substantial ground for the contention that the Ombudsman has acted in bad faith. A similar privative condition should be contained in the IBAC Act, the intention again being to limit the avenues of appeal to the court open to those suspected of corrupt conduct.
Accountability Round Table
2 February 2016
For further information see also Do we have a corruption problem in Victoria?