The following letter and submission make clear ART’s analysis of the proposed amendments to IBAC legislation.
The Hon. Gavin Jennings MLC
Special Minister of State
Level 1, 1 Treasury Place
Integrity and Accountability Legislation Amendment (A Stronger System) Bill 2015
ART has given further careful consideration to the proposals for change contained in the above Bill and the issues it seeks to address.
The result is the enclosed Submission which updates our concerns, proposals and our analysis. We will be forwarding it to all members of the Victorian Parliament in due course (together with the Submission previously submitted to you “Does Victoria have a corruption Problem” and a list of the amendments to the legislation we would propose).
If there is anything that needs clarification, and any way we can assist further, we would greatly appreciate that opportunity.
We look forward to opportunities for further discussion on these and other government integrity system issues.
Hon. Tim Smith QC
Chair, Accountability Round Table
Link to a PDF of the full submission here
The opening paragraphs of the submission are reproduced below.
SUBMISSION OF THE ACCOUNTABILITY ROUND TABLE REGARDING
THE INTEGRITY AND ACCOUNTABILITY LEGISLATION AMENDMENT
(A STRONGER SYSTEM) BILL 2015
The Amending Bill, if passed, will bring about the following changes. The Bill –
(a) Broadens the definition of “corrupt conduct” by inserting “misconduct in public office” into the definition of “relevant offence” (cl. 3(f)).
(b) Reduces the threshold before which IBAC may not conduct a full investigation by removing from the definition of “corrupt conduct”, in s.4(1) of the Act, the words “if the facts were found proved beyond reasonable doubt at a trial”; and by providing that (for the purposes of s.60(2) of the Act) IBAC may assume that the required state of mind to commit the relevant offence can be proven (cl. 4).
(c) Directs IBAC to prioritise its attention to investigating and exposing corrupt conduct that IBAC considers may be serious or systemic, without restricting IBAC’s discretion to investigate any matter that IBAC considers may constitute corrupt conduct (cl. 8).
(d) No longer limits IBAC to investigating “serious” corrupt conduct. IBAC must now not conduct an investigation unless it suspects “on reasonable grounds” that conduct constitutes corrupt conduct (cl. 8 & 23).
(e) Authorises IBAC during preliminary inquiries, to require the principal officer of a public body to provide any relevant information to IBAC and to require any person to attend and produce documents or other things (cl. 22).
(f) Gives power to IBAC to make certain delegations in appropriate circumstances (cl. 9 & 11).
(g) Establishes consistent requirements for mandatory notification to IBAC of possible corrupt conduct by other bodies (cl. 20).
(h) Authorises IBAC to apply to the Magistrates’ Court for search warrants (cl. 28).
(i) Amends the Act in such a way as appears to avoid the difficulties faced by ICAC as a result of the decision of the High Court in Independent Commission Against Corruption v. Cunneen  HCA 14 (cl. 4).
(j) Expressly authorises IBAC to conduct preliminary inquiries (cl. 22).
Those who drafted the amending Bill clearly assumed, since the IBAC Act does not expressly authorise IBAC to make preliminary inquiries, that IBAC has no power to do so. The same assumption was made by those who drafted the 2014 amending Bill which was tabled, but not debated or enacted, during the life of the previous Parliament.
This assumption is incorrect. IBAC’s Commissioner and staff have acted on the assumption that it was necessarily implied in the legislation that IBAC should be entitled to make preliminary inquiries (without using the full powers granted by the IBAC Act) to determine what matters justified an IBAC investigation. But IBAC’s assumption was justified by High Court authority. In 1986, a Parliamentary Commission of Inquiry was appointed to inquire and advise the Parliament whether any conduct of the plaintiff, Justice Lionel Murphy, had been such as to amount in its opinion to proved misbehaviour within the meaning of s.72 of the Constitution. In June 1986, Justice Murphy’s counsel applied for an injunction on the ground that the Act setting up the Commission did not authorise investigations to be made. The High Court in a joint judgment rejected the application forthwith, saying –
“The mere conduct of private inquiries, in what we must assume would be a responsible manner, is not likely to cause any real damage to the plaintiff’s reputation. Further no one requires special authority at law simply to make inquiries.” (Murphy v Lush (1986) 65 ALR 651; 60 ALJR 523)