Tasmanian Times

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

Integrity Commission Inquiries

After the election, will Victoria get a corruption watchdog that works as promised?

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.

The Conversation

Stephen Charles is affiliated with the Accountability Round Table.

This article was originally published on The Conversation. Read the original article.

Author Credits: [show_post_categories parent="no" parentcategory="writers" show = "category" hyperlink="yes"]
13 Comments

13 Comments

  1. Leonard Colquhoun

    November 21, 2018 at 12:02 pm

    Last week, the Victorian ALP looked almost a shoe-in because:

    ~ weak Liberal opposition with an uninspiring leader – which is not everything a party needs of course, but becomes crucial in a party and movement so deracinated as today’s LPA, plus lingering memories of how insipid the 2014-2018 Baillieu / Napthine administration was;

    ~ similarly, the Bracks / Brumby governments generally governed for a decade-and-half from the sensible and moderate centre;

    ~ the voter appeal of highly physical presence of its infrastructure programs and other such works-in-progress .. which had an effect on the daily / weekly lives of Mum + Dad voters; and, oppositely,

    ~ its imposition of radical gender-ID preaching in the state’s public schools which was very controversial but actually affected only a minority of voters who – very temporarily – had children in such schools, and thus not a big deal for the majority of the state’s people. Much the same could be said about rampaging NE African youth gangs – just tough titties for those (many rusted-on) ALP voters anyway in those electorates.

    But after the revelations since then – what ???

  2. Russell

    December 1, 2014 at 5:35 pm

    Re #9
    So you think it’s ok that we are being ripped off by politicians to the tune of what would fix the budget?

  3. Russell

    December 1, 2014 at 5:19 pm

    Re #9
    Charles, I would simply say that your view was tainted with that of any Government who thinks business (no matter how damaging to the environment or economy) and filling their own pockets is a priority over and above the interests of the Australian public.

    This is clearly evident in your constant pro-logging, pro-burning, anti-environment and anti-social stances despite 30 years of total Government dependency and losses of that same industry.

  4. Robin Charles Halton

    November 30, 2014 at 10:52 pm

    Russell, despite your political and legal expertise as a globally acclaimed expert in multiple areas of expertise I would simply say that the new Premier of Victoria Daniel Andrews would have higher priorities to deal with immediately.

    As any Premier could respond given the alleged Federal Budget deficit as an act of goodwill Mr Andrews has initially conceded the Melbourne East West link project money, it will be now handed to Sydney which has a higher priority to ease traffic congestion to properly complete another new link across the NSW city.

    Judging by Mr Andrews interview with ABC 7.30 presenter Lee Sales earlier this evening he made it absolutely clear that Health and Education are on top of the agenda for the State.

    At this point in time I would doubt if the new Premier would be interested in pursuing ICAC or IBAC immediately, other matters appear to be more pressing given the poltical multi tasking needed to keep moving Victoria foward with a Federal government that is likely to be facing unprecedented budget blow outs given sharp fall in mining and tax revenues.

    • Leonard Colquhoun

      November 21, 2018 at 1:57 pm

      Re ” .. and Education are on top of the agenda for the State”. Hopefully, big-E education will mean great leaps forward in the restoration of academic rigour, subject disciplines, and a much higher standard of real teaching (as distinct from ‘preaching’) and actual learning (as distinct from ‘fun’).

      When asked by his king, Ptolemy I Soter (323-283 BCE) about an easier way to learn some maths, his tutor Euclid (is said to have) replied “There is no Royal Road (caps deliberate) to geometry” and, by extension, to any worth-the-effort learning as any biography of our Don makes very clear. (Wikipedia has two informative pages on this saying.)

      Real learning is not (sort-of) meant to be easy. Neither is real teaching. But both, done well, are rewarding beyond any measure of the effort involved.

  5. Russell

    November 30, 2014 at 4:31 pm

    Re #5

    It did add “or apply for Centrelink unemployment benefits like ordinary Australians.”

    There’s always re-skilling and re-educating at their own expense “like ordinary Australians” to gain employment as well 😉

  6. Russell

    November 30, 2014 at 1:37 pm

    cont’d…
    For the ‘lifetime’ payment example (below) we’ll use the scenario that:

    1.. They are paid ‘lifetime’ salaries the same as their last working year and

    2.. After retiring, the average pollie’s life expectancy is an additional 20 years (which is not unreasonable).

    It’s worth remembering that this is EXCLUDING all their other perks!

    SO, for a 20 years ‘lifetime’ payment (excluding wages paid while a Parliamentarian):

    Prime Minister @ $507,338 = A$10,146,760

    Deputy Prime Minister @ $400,016 = A$8,000,320

    Treasurer @ $365,868 = A$7,317,360

    Leader of the Opposition @ $360,990 = A$7,219,800

    House of Reps Speaker @ $341,477 = A$6,829,540

    Leader of the House @ $341,477 = A$6,829,540

    Minister in Cabinet @ $336,599 = A$6,731,980

    Parliamentary secretary @ $243,912 = A$4,782,240

    Other ministers** @ $307,329 = A$6,146,580 x 71 = A$436,407,180

    Shadow ministers** @ $243,912 = A$4,878,240 x 71 = A$346,355,040

    Conclusions:
    TOTAL ‘life time’ (20 year) payments, (excluding wages paid while in parliament) = A$833,886,220 -OVER $833 MILLION

    Julia Gillard, Kevin Rudd, John Howard, Paul Keating, Malcolm Fraser, Bob Hawke, et al, add nauseum, are receiving $10 MILLION + EXTRA at taxpayer expense.

    Should an elected PM serve 4 years and then decide to retire, each year (of the 4 years) will have cost taxpayers an EXTRA two and a half million bucks a year! A$2,536,690 to be precise.

    A 2 year retirement payment cut-off will SAVE our Oz bottom line A$792,201,909 *** NEARLY $800 MILLION.

    This example excludes all wages paid while a parliamentarian AND all perks on top of that – travel, hotels, Secretarial staff, speech writers, restaurants, offices, chauffeured limos, security, etc. etc.

    “Instead of giving a politician the keys to the city, it might be better to change the locks.” Doug Larson (English middle-distance runner who won gold medals at the 1924 Olympic Games in Paris, 1902-1981)

    You’re right, you have found where the cuts should be made!

    Action: Push for a MAX 2 year post retirement payment (give ’em time to get a real job).

    Spread it far and wide folks. People should know.

  7. Russell

    November 30, 2014 at 1:32 pm

    cont’d…
    If you wonder why the Politicians are asking for your help paying their way look at the figures below.

    REMUNERATION – SPECIFIED STATUTORY OFFICES.

    Date of Effect 1 July 2014, Specified Statutory Office.

    Base Salary (per annum) – Total remuneration for office (per annum):

    Chief of the Defence Force > $535,100 – $764,420

    Commissioner of Taxation > $518,000 – $740,000

    Chief Executive Officer, Australian Customs And Border Protection Service > $483,840 – $691,200

    Auditor-General for Australia > $469,150 – $670,210

    Australian Statistician > $469,150 – $670,210

    “PAY FREEZE, NOT FAIR…SOB, SOB”

    Salaries of retired Prime Minister and Politicians Office Additional salary (%) Salary as of 1 July.

    Prime Minister 160 $507,338

    Deputy Prime Minister 105 $400,016

    Treasurer 87.5 $365,868

    Leader of the Opposition 85.0 $360,990

    House of Reps Speaker 75.0 $341,477

    Leader of the House 75.0 $341,477

    Minister in Cabinet 72.5 $336,599

    Parliamentary secretary 25.0 $243,912

    Other ministers 57.5 $307,329

    Shadow minister 25.0 $243,912

    Source: Remuneration Tribunal.

    So if we press all the right buttons, the TOTAL annual wages for the 150 seats in the Parliament are:

    Prime Minister $507,338

    Deputy Prime Minister $400,016

    Treasurer $365,868

    Leader of the Opposition $360,990

    House of Reps Speaker $341,477

    Leader of the House $341,477

    Minister in Cabinet $336,599

    Parliamentary secretary $243,912

    Other Ministers* 307,329 x 71 = A$21,820,359

    Shadow Ministers* $243,912 x 71 = A$17,317,752

    The TOTAL ANNUAL SALARIES (for 150 seats) = $41,694,311 – PER YEAR!

    And that’s just the Federal Politicians, no-one else!

  8. Leonard Colquhoun

    November 30, 2014 at 1:04 pm

    Thoroughly agree with this in Comment 4: “Serving in Parliament is an honour, not a career.

    “The Founding Fathers envisioned citizen legislators, so our politicians should serve their term(s), then go home and back to work”.

    Bit of a problem with this bit: “then go . . back to work” – what work?

    What was more of a problem with Labor MPs is now becoming one for Coalition MPs: never had real jobs, never led real lives, never mixed with real people with real jobs.

    Perhaps there needs to be a prerequisite for standing for Parliament of having had a ‘real’ job for, say, five or seven years. (But I’ve no clue on how to implement it to be 90% non-rortable. Has anybody?)

    Non-negotiable minimum terms (say, three?) for being in Parliament should be easier to implement.

  9. Russell

    November 29, 2014 at 12:09 pm

    A MUST READ (from a retired Barrister):

    Regarding Abbott’s vision of ending the age of entitlement, I absolutely agree, if a pension isn’t an entitlement, neither is theirs. They keep telling us that paying us an aged pension
    isn’t sustainable.

    Paying politicians all the perks they get is even less sustainable!

    The politicians themselves, in Canberra, brought it up, that the Age of Entitlements is over.

    Proposals to make politicians shoulder their share of the weight now that the Age of Entitlement is over:

    1. Scrap political pensions. Politicians can purchase their own retirement plan, just as most other working Australians are expected to do.

    2. Retired politicians (past, present & future) participate in Centrelink. A Politician collects a substantial salary while in office but should receive no salary when they’re out of office.

    Terminated politicians under 70 can go get a job or apply for Centrelink unemployment benefits like ordinary Australians.

    Terminated politicians under 70 can negotiate with Centrelink like the rest of the Australian people.

    3. Funds already allocated to the Politicians’ retirement fund be returned immediately to Consolidated Revenue.

    This money is to be used to pay down debt they created which they expect us and our grandchildren to repay for them.

    4. Politicians will no longer vote themselves a pay raise. Politicians pay will rise by the lower of, either the CPI or 3%.

    5. Politicians lose their privileged health care system and participate in the same health care system as ordinary Australian people, i.e. Politicians either pay for private cover from their own funds or accept ordinary Medicare.

    6. Politicians must equally abide by all laws they impose on the Australian people.

    7. All contracts with past and present Politicians
    men/women are void effective 31/12/14.

    8. Politicians and public servants get the same rate of Superannuation as the rest of the Australian people.

    The Australian people did not agree via any sort of referendum to provide perks to Politicians, that burden was thrust upon them.

    Politicians devised all these contracts to benefit themselves.

    Serving in Parliament is an honour, not a career.

    The Founding Fathers envisioned citizen legislators, so our politicians should serve their term(s), then go home and back to work.

    If each person contacts a minimum of twenty people, then it will only take three or so days for most Australians to receive the message. Don’t you think it’s time?

    THIS IS HOW YOU FIX Parliament and help bring fairness back into this country!

    If you agree with the above, pass it on.

  10. Russell

    November 28, 2014 at 5:58 pm

    We should have referendum for the establishment of a National Corruption Watchdog to see that the Australian Constitution is adhered to to the letter by constantly investigating all politicians and public service heads

    It should have full investigative, jurisdictional and sentencing powers and be beyond the reach of politics and corporate interests and be embedded within the High Court as it should be, according to our Constitution.

    For example, if the Constitution (Section 44) was adhered to correctly, Eric Abetz would be disqualified from Parliament for not having renounced his German citizenship until just recently and face a penalty of $200 per day for all the years he sat as a Member in Parliament. Since he began his 14 year political career before renouncing his German citizenship I believe under the “Common Informers (Parliamentary Disqualifications) Act 1975” he would also owe around $73,000.00 because he is still in Parliament.

    Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It states in particular:

    44. Any person who – (i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power.

    Subsection 44(i) has generally been interpreted as meaning that persons with dual citizenship are not permitted to stand for election.

    You can’t even stand for Parliament if you are an employed Public Servant (eg: a teacher) maintaining “an office for profit under the crown” (even if on Leave) as Phil Cleary found out in 1992; or have dual British/Australian citizenship as Heather Hill learned in 1998; or as George Newhouse would have found if he had won the seat of Wentworth in 2007.

    Tony Abbott’s British/Australian dual citiznship when he entered Parliament in 1994 is also a matter for concern.

  11. A.K.

    November 28, 2014 at 12:12 pm

    #1, Russell, “Isn’t “misconduct in public office” an act of treason?”

    I believe that should be the case for all public servants, politicians and even corporate directors, managers who lie, deceive and disenfranchise the people of their assets by selling and giving it away to their corporate supporters. Which to any sensible person, is an act of treasonous bribery, especially when they give them to overseas corporations and foreign governments enterprises.

    Labor is already trying to water down it’s promises, as it sees it may win and you can be sure that most of their promises will go out the window just the same as the libs, greens and all political parties. The east west link fiasco will go ahead, because lab is committed to the same corporations as the libs and ideologues have no other approach to life other than to deceive. Every fact supports that reality.

    We need online debate, voting and management of our societies by the people as soon as possible, as anyone with half a brain can see the incumbent system is dead and killing the future rapidly.

  12. Russell

    November 27, 2014 at 6:27 pm

    Isn’t “misconduct in public office” an act of treason?

    There should be a totally independent National Corruption watchdog with powers over and above Governments and Police operating 24/7 and constantly and specifically looking into every single politician’s and Government Department executive’s activities.

    No new Laws should be enacted without going to a referendum either. And public servants’ wages should also be decided by the population. It’s easy enough to set up online and less time and money consuming than the skullduggery that politicians put us through or hide from us already.

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