The IBAC can only investigate public sector conduct that amounts to a "relevant offence" and is "serious".
In February 2013, Victoria's first ever anti-corruption commission became fully operational. Called the Independent Broad-based Anti-Corruption Commission (IBAC), it is a keystone of Victoria's integrity reforms which have been hailed as "the most far-reaching and fundamental reforms to the anticorruption and integrity system in Victoria's history".1
In November 2011, the Victorian Parliament passed the Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act) which established the corporate structure of the IBAC. In 2012, the IBAC Act was amended to grant the IBAC certain investigate powers as well as define its main areas of jurisdiction. These amendments were proclaimed in February 2013, making the IBAC fully operational.
Anti-corruption commissions nationally
Prior to the IBAC, Victoria and South Australia were the only two states of Australia which did not have their own anti-corruption commissions. South Australia is expected to open an independent commission against corruption later in 2013, which will mean that for the first time all Australian states will have their own anti-corruption commissions.
On a Commonwealth level, the Commonwealth Attorney-General's Department is currently developing Australia's first National Anti-Corruption Plan. The main purpose of the plan is "to develop a cohesive framework to coordinate and guide anti-corruption activities in Australia."
Jurisdiction and powers of the IBAC
The three main functions of the IBAC are:
- identify, expose and investigate "serious corrupt conduct";
- identify, expose and investigate "police personnel misconduct"; and
- assess "police personnel conduct".
The IBAC has functions in relation to police conduct because the role of the Office of Police Integrity has been assumed by the IBAC.
"Corrupt conduct" is defined by section 4 of the IBAC Act. Broadly speaking, "corrupt conduct" falls into five categories:
- conduct adversely affecting the honest performance of a public officer's or public body's functions;
- conduct that involves the dishonest performance of a public officer's or public body's functions;
- conduct of a public officer or public body that involves knowingly or recklessly breaching public trust;
- the misuse of information or material acquired by a public officer or public body; and
- conduct that could constitute a conspiracy or an attempt to engage in any of the conduct referred to above.
There is an additional important element to the definition of "corrupt conduct". Conduct only amounts to "corrupt conduct" if it would constitute a "relevant offence", being an indictable offence against an Act or one of the following common law offences committed in Victoria:
- perverting the course of justice;
- attempting to pervert the court of justice; and
- bribery of a public official.
The concepts of a "public officer" and "public body" are also significant. These are both defined by section 6 of the IBAC Act. A "public body" includes:
- a Victorian government department;
- a body established under an Act for a public purpose, including a university; and
- a body that is performing a public function on behalf of the State of Victoria, a public body or a public officer.
The definition of "public officer" comprises 27 categories, the broadest being
- any person in the service of the Crown in right of Victoria or a public body;
- a person performing a public function on behalf of the State of Victoria, a public body or public officer; and
- an employee of a public body or public officer.
The IBAC has several powers to investigate "serious corrupt conduct", including the power to obtain and execute search warrants, summon witnesses, conduct public examinations, and authorise a suitably trained senior officer of the IBAC to carry firearms for the purpose of an investigation.
Where to from here?
Australia has a good track record for being clear of corruption. In 2012, Australia was ranked seventh least corrupt out of 176 countries and territories in a survey of perceived levels of public sector corruption compiled by Transparency International. Based on this, one would expect (or at least hope) that the IBAC will have little corruption to investigate.
Some have said that the IBAC is perhaps not adequately equipped to investigate corruption because its jurisdiction is "too narrow and unclear".2 As discussed above, the IBAC can only investigate conduct that amounts to a "relevant offence" and is "serious". The latter concept of "serious" is undefined. These two requirements may be difficult to fulfil in some cases.
However, the IBAC may refer complaints to another body, such as the Victorian Ombudsman, if it considers that the complaint relates to that body's functions and it would be more appropriate for that body to investigate it.3 Further, the Victorian Ombudsman may investigate administrative actions that do not appear to involve corrupt conduct plus administrative actions that do appear to involve corrupt conduct provided it has first been given a referral by the IBAC.4 Hopefully, these arrangements will ensure that all corrupt activity can be adequately investigated.
As for the future, it is worth noting the following three points. First, the IBAC is restricted to investigating public sector corruption. One may wonder whether measures will be introduced in the future to address private sector corruption. Although public sector corruption is generally perceived as more egregious, all forms of corruption can distort markets, damage a country's business reputation and undermine ethical business practices.
Secondly, the IBAC Act lists certain common law offences as "relevant offences". As stated above, conduct must be capable of constituting a "relevant offence" to amount to "corrupt conduct" and consequently fall within the jurisdiction of the IBAC. For this reason, there may be increased attention on the common law offences of attempting to pervert the course of justice and bribing a public official, which are "relevant offences".5
Finally, the National Anti-Corruption Plan of the Commonwealth Attorney-General's Department will hopefully be released in the near future and give the Commonwealth's views on how corruption can be cohesively combatted on a national scale.
1 The Honourable Andrew McIntosh, Minister responsible for the establishment of an anti-corruption commission (Hansard, 27 October 2011, page 4974).
2 Submission of the Law Institute of Victoria on "Legislation creating the Independent Broad-based Anti-corruption Commission", 9 May 2012 at page 3. A critique of the IBAC is beyond the scope of this article. Please see this submission for a detailed critique.
3 See section 73 of the IBAC Act.
4 See sections 13(1) and 13AA(1)(a) of the Ombudsman Act 1973 (Vic).
5 The Law Institute of Victoria has submitted that the definition of "relevant offence" should be expanded to include all indictable common law offences. See note 3 at page 4.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.