Before the 2010 election, the opposition – now the government – promised Victorians an anti-corruption commission. This was to be closely modelled on the New South Wales Independent Commission Against Corruption (ICAC). Instead Victorians got IBAC, the Independent Broad-based Anti-Corruption Commission (IBAC).
The IBAC legislation has a very narrow definition of corrupt conduct. It excludes the offence of misconduct in public office. IBAC’s jurisdiction is further limited by the very narrowly defined phrase “being conduct that would, if the facts were found proven beyond reasonable doubt at a trial, constitute a relevant offence”.
In contrast, the NSW ICAC has very broad powers to start an investigation. “Corrupt conduct” is defined in such a way as to include any activity that could adversely affect directly or indirectly the exercise of official functions by a public official. It covers a broad variety of other offences.
ICAC’s jurisdiction is so widely expressed that it can investigate any allegation that in the Commissioner’s opinion implies that corrupt conduct may be occurring, or about to occur. The power to investigate is virtually unlimited. ICAC is entitled to use its broad powers at any stage of an investigation.
Since 2011, in a departure from its position in government, the Labor opposition has not suggested that Victoria does not need or should not have such an anti-corruption commission.
Victoria’s IBAC cannot investigate, however, unless it is satisfied that the conduct is serious corrupt conduct. It cannot use its full coercive powers during preliminary investigations.
Key steps towards making IBAC effective
To make the IBAC an effective anti-corruption commission:
the definition of “corrupt conduct” should be greatly broadened
the limitation to “facts which if proved beyond reasonable doubt at a trial would constitute a relevant offence” should be removed;
the offence of misconduct in public office should be included;
IBAC’s entitlement to investigate should be broadened and the threshold lowered;
IBAC should be entitled to use its broad powers from the outset of any investigation.
What the government has offered
The present Coalition government proposes to amend the legislation as follows:
to include the offence of misconduct in public office;
to permit IBAC to conduct preliminary investigations to determine whether to investigate a matter under the Act;
to conduct a preliminary inquiry, it will no longer be necessary for IBAC to articulate a state of facts that, if found proved beyond reasonable doubt at a trial, would constitute a relevant offence;
IBAC is, however, not entitled to use its broad powers during a preliminary investigation.
A significant advance is the inclusion of misconduct in public office in the definition of either corrupt conduct or “relevant offence”. An amendment that formally authorises IBAC to make preliminary investigations is desirable, but of little real consequence. IBAC already acts on the assumption that it has this right.
The legislation will remain seriously defective in not permitting IBAC to use its coercive powers during preliminary investigations. Under the proposed amendments, so long as IBAC has no more than a suspicion that some unidentified corruption may be occurring, it will remain unable to use its coercive powers, since it will continue to be unable to identify facts that if found proved at a trial beyond reasonable doubt would amount to a relevant offence.
The government-proposed amendments will leave IBAC still inadequately armed to expose corruption and falling far short of the ICAC model. The narrow and constricted definition of corruption is wholly inappropriate to IBAC’s proper function. It will be unable to detect and expose hidden corruption unless authorised to use the full coercive powers of the legislation in preliminary investigations.
The thresholds in the IBAC Act prevent IBAC from conducting a full and proper investigation of any corruption unless it can articulate facts that, if found proved beyond reasonable doubt at a trial, would constitute a relevant offence. This threshold is completely inappropriate if IBAC is to have the ability to investigate corruption.
Labor’s response also falls short
In response, Labor proposes to lower the investigatory threshold to ensure that IBAC does not need to be satisfied (prima facie) of the existence of serious corrupt conduct before starting an investigation.
Labor proposes to include misconduct in public office in the list of relevant offences and to resolve jurisdictional issues between IBAC and other integrity bodies. It has also indicated a willingness to pass the Integrity Legislation Amendment Bill 2014, which the government had proposed but not brought forward for debate.
Labor’s proposals in opposition are no more satisfactory than those of the government. The legislation will still have a wholly inadequate definition of corrupt conduct. IBAC’s entitlement to investigate will not be broadened and there is no proposal to permit the use of its broad powers from the start of any investigation. Despite a vague mention of reducing the thresholds before an IBAC investigation can begin, no detail has been given.
Labor’s response to the inadequacies of the present legislation is vague and as unsatisfactory as that of the incumbent government. The Coalition can at least say that it established an anti-corruption commission.
Greens offer to give IBAC teeth
The Greens’ response is the most satisfactory. The Greens have broadly supported all of the Accountability Round Table’s proposed amendments.
The Greens indicated that the legislation should be amended to allow disclosures relating to members of Parliament to be made to IBAC. A separate body should be established to investigate police misconduct, including injury and death as a result of police contact.
The Greens say they will:
broaden the definition of corrupt conduct along the lines of the ICAC Act;
remove the requirement that IBAC investigate only “serious” corrupt conduct;
not limit the definition of corrupt conduct to indictable offences;
provide IBAC with appropriate coercive powers to conduct effective preliminary investigations.
Stephen Charles is affiliated with the Accountability Round Table.