THE Baillieu government is under pressure to rethink its anti-corruption commission after one of its key advisers accused it of muzzling the body and ”extracting its teeth”.

Melissa Fyfe and Royce Millar explain why in an article in “The Age”.


Corruption watchdog ‘muzzled’

Melissa Fyfe and Royce Millar
Published: June 20, 2012 – 3:00AM

THE Baillieu government is under pressure to rethink its anti-corruption commission after one of its key advisers accused it of muzzling the body and ”extracting its teeth”.

In a damning assessment of the anti-corruption legislation, former Supreme Court judge Tim Smith, QC, called on the Coalition to widen the body’s scope and redraft the laws underpinning the commission. The controversial body was due to begin work within weeks, but the government is yet to find a commissioner to lead it.

Mr Smith has been silent on the anti-corruption commission since he gave advice to the government early last year. His analysis of the legislation, delivered yesterday to a Melbourne Law School seminar, means both of the government’s key advisers are now sharply critical of the new body’s narrow nature.

The government’s other key adviser, eminent lawyer Douglas Meagher, QC, told The Age in March that the government had restricted the commission’s scope so much that ”it would be well advised to save its money and abandon the project”. The organisation will cost $170 million over four years.

Mr Smith said: ”It’s difficult to escape the conclusion, I suggest, that the government decided not just to extract the teeth of [the commission)], but to muzzle it.

”Alternatively, if the government still intended [the commission] to be able to be an effective investigator, the drafting of the legislation to limit power to serious corrupt conduct is seriously flawed.”

Mr Smith is chairman of the Accountability Round Table, a non-partisan group concerned with honesty and integrity in government.

The Coalition promised in its 2010 election policy on integrity that its Independent Broad-based Anti-corruption Commission would investigate a wide range of corruption. The commission will cover 250,000 public sector employees, MPs, judges, police, local government workers and contractors. In March, The Age revealed gaps in the legislation governing the body, including the failure to cover offences such as misconduct in public office.

Mr Smith’s concerns centre on how the legislation sets out what the commission can investigate. He said the commission must jump over too many hurdles to even begin an inquiry. In this respect, he said, the Victorian legislation was significantly more restrictive than that of the New South Wales anti-corruption body, on which the government promised to model its organisation.

Before it can investigate, the commission must be ”reasonably satisfied” that it has allegations of conduct that constitute ”serious corrupt conduct”. It must also have ”facts” before it that, if found ”proved beyond reasonable doubt at a trial”, would constitute a relevant offence.

Mr Smith said that any person under investigation could, at any step, challenge the commission in court to prove how it was ”reasonably satisfied” serious corrupt conduct had occurred and whether it had taken into account all the ”facts”.

Under the current legislation, Mr Smith said, the allegations that Liberal MP Geoff Shaw’s taxpayer-funded parliamentary car was used for delivery runs for his hardware supply business were unlikely to be investigated by the anti-corruption commission.

”The reality remains that investigations will be fraught with difficulty and very significant limits have, on any view, been placed on the investigative power of [the commission] because of the very narrow definition of corrupt conduct and the threshold test,” he said.

Mr Smith said the commission would need independent, top-quality legal advice ”at every step it takes” and it was likely the body would be challenged in the Court of Appeal, the Supreme Court and even the High Court. ”The process of finding out whether, and in what circumstances, [the commission] can lawfully conduct investigations is likely to be slow, painful, very expensive and wasteful.”

It was in the best interests of the community for the government to redraft the legislation to remove the problems, he said.

”It should abandon the attempt to limit [the commission’s] investigations to serious corrupt conduct and, in doing so, honour its election commitments. If it had done so, I would suggest, we and the government would not have these problems on our hands,” Mr Smith said.

Labor’s spokeswoman on the anti-corruption commission, Jill Hennessy, said the government had delivered a body that ensured it was never publicly investigated. Legislation empowering the body with telephone-intercept abilities passed the Senate on Monday night, Ms Hennessy said, leaving no excuses for the government’s tardiness in setting up an operating commission.

James Talia, spokesman for Andrew McIntosh, the minister responsible for the establishment of the commission, said the government had drafted the legislation so that the body would focus only on the most serious instances of corruption. ”The government is confident the legislation as drafted achieves our policy intentions.”

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Corruption watchdog muzzled

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