The Hon Stephen Charles QC and the Hon Tim Smith, QC, both former Supreme Court judges have scrutinised the proposed amendments to the IBAC Integrity Legislation Amendment Bill 2014 as featured in “The Age” 14 Oct 2014. They have ‘contended that the Independent Broad-based Anti-corruption Act 2011 is seriously defective’.

While it is a significant advance that the amendments include  “misconduct in public office” in the definition of “relevant offence”,  the IBAC still may not use any coercive powers of “entry, search and seizure, the power to use a search warrant, or the power to seek a surveillance device warrant under the Surveillance Devices Act 1999.” These powers were essential to the success of the NSW ICAC in its recent investigations of the granting of mining licences by the then Minister Ian McDonald to Eddie Obeid’s family.

Although with the passage of this amendment IBAC may begin preliminary investigations into misconduct in public office, the absence of such powers significantly constrain IBAC’s ability investigate further the conduct of any Minister or member of the government because the threshold test is still to high for it to expose any actual corruption,  “since it will continue to be unable to identify facts which if found proved at trial beyond reasonable doubt would amount to a relevant offence”.

The changes that the two former judges and ART called for are:

(a)  the present definition of “corrupt conduct” is far too narrow and a much broader definition should be introduced, for example along the lines of s.8 of the ICAC Act 1988. Furthermore it should be for the IBAC Commissioner to determine what corruption is significant, and the IBAC should not be required by s.60(2) to investigate only “serious corrupt conduct.”  If any conduct is “corrupt” the IBAC should have the discretion to investigate it;

(b)  the thresholds which presently prevent IBAC investigating any state of affairs which gives rise to a suspicion of corrupt conduct should be removed.  See, for example, s.13 of the ICAC Act, which entitles the ICAC to investigate (inter alia) “any allegation or complaint that, or any circumstances which, in the Commissioner’s opinion imply that … corrupt conduct … may have occurred, may be occurring or may be about to occur.” Removing these barriers would also require the removal of s.60(2) of the IBAC Act, and the passage in s.4 in the definition of “corrupt conduct” which stipulates “being conduct that would, if the facts were found proved beyond reasonable doubt at a trial constitute a relevant offence”;

(c)  if it be thought necessary a section such as s.12A of the ICAC Act could be introduced requiring the IBAC, as far as practicable, to direct its attention to serious and systemic conduct, but leaving it to the discretion of the IBAC Commissioner to determine the practicalities.

As Charles and Smith conclude, “In other words, the narrow and constricted definition of corruption is wholly inappropriate to the IBAC’s proper function.  Secondly the IBAC should be entitled to use the full coercive powers of the legislation in conducting preliminary investigations, and will be unable to detect and expose hidden corruption without such powers.  Thirdly the thresholds in s.4 and s.60(2) of the IBAC Act prevent the IBAC from conducting a full and proper investigation of any corruption unless the IBAC can articulate facts which, if found proved beyond reasonable doubt at a trial would constitute a relevant offence.  This threshold also is completely inappropriate if the IBAC is to have the ability to investigate corruption.”

The full text of their critique can be found here. Election commitments- IBAC Amendment Bill Update 8-10-14