Australia: IBAC: Investigation of corruption in Victorian public sector: Past, present and future

The Independent Broad-based Anti-corruption Commission (IBAC) recently celebrated its fifth birthday. While it has succeeded in uncovering instances of serious corrupt conduct, there remain concerns about the scope of IBAC's remit—particularly in the context of police complaints. Should IBAC be as broad as its NSW equivalent? And is it time for a federal equivalent?

POWERS AND PURPOSE

The Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act) was passed in 2011 and came into force 1 July 2012. It gave IBAC significant investigative powers, including to:

  • enter and search premises;
  • seize or compel the production of documents;
  • intercept telephones and use surveillance devices;
  • conduct public examinations; and
  • compel the giving of evidence.

The IBAC Act prioritises the identification, exposure and investigation of serious or systemic corrupt conduct in the Victorian public sector,1 as well as police personnel misconduct.2

The independence of IBAC is guaranteed in s 18 of the IBAC Act, which provides that 'IBAC is not subject to the direction or control of the Minister in respect of the performance of its duties and functions and the exercise of its powers'.3

PAST AND PRESENT

IBAC achieved a considerable amount in its first five years, conducting 55 investigations, five public examinations and 18,869 allegation assessments.

Two public examinations were notable successes. Public examinations, only taken in exceptional circumstances, are not trials and do not determine guilt or innocence. As is the case with the following two examples, however, court proceedings can often follow.

  1. Operation Ord was a major investigation into the conduct of then senior officers of the Department of Education (DET) and others, in connection with the use of 'banker schools' and related activities. The investigation focused on allegations that senior departmental officers misappropriated funds from DET's budget through fraudulent invoicing practices and inappropriate private use of Departmental expenses budgets. IBAC recommended that DET implement reforms to address the uncovered corruption and prevent future corrupt conduct. DET published an interim and a final report outlining their progress. Aspects of Operation Ord are currently before the courts.
  2. Operation Ross involved allegations of excessive use of force by police in Ballarat Police Station. In March 2015, CCTV footage of Victoria Police officers abusing a woman arrested for public drunkenness months earlier was released. IBAC commenced an own motion investigation into the officers involved at Ballarat Police Station, which expanded to examine incidents involving alleged excessive use of force against other people at the Station. The investigation found that there was evidence of systemic abuses, including excessive use of force and questionable treatment of vulnerable people. IBAC also recommended that Victoria Police consider bringing charges against the officers involved in the March 2015 incident.

2016 REFORMS

Though Operation Ord proved the importance of an effective anti-corruption body in Victoria, there was concern that the corrupt conduct jurisdiction of IBAC was too narrow and its investigative threshold too high.

On 31 May 2016, key reforms came into effect pursuant to the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016 (Vic), including:

  • expanding the jurisdiction of IBAC to include all corrupt conduct where previously the jurisdiction was confined to conduct that was 'serious';
  • lowering the investigative threshold, from a state of reasonable satisfaction that an allegation involved corrupt conduct to suspicion on reasonable grounds; and
  • changing the notification requirements by public sector agency heads when corrupt conduct is suspected from voluntary to mandatory.

FUTURE

On one hand, IBAC has had a number of startling successes. On the other, this raises the question: just what would IBAC have uncovered if its jurisdiction were broader? And what would a federal ICAC have uncovered in the same period?

Future reforms could look at three particular issues:

Further lowering of evidentiary threshold required to commence investigation

The November 2017 policy blueprint for a federal ICAC by six prominent former judges (collectively, the self-styled National Integrity Committee) states that IBAC is only able to use its strong investigative powers once 'reasonably satisfied that the conduct is serious corrupt conduct' (erroneously citing the pre-2016 reform of s 60(2) which removed 'serious' despite post-dating the reforms). Even with the removal of the 'serious' qualifier, the central point of the policy paper still stands, which is that the threshold is too high.

For instance, if applied in NSW, the Victorian legislation 'would not have allowed NSW ICAC to investigate the Obeid family'. The operations that ultimately led to Eddie Obeid's conviction and incarceration for misconduct in public office 'began with an anonymous phone call to NSW ICAC suggesting that they should look into coal licences in the Bylong Valley'.4

Serious consideration should be given to amending Division 4 of the IBAC Act to lower the evidentiary threshold required to commence an investigation, perhaps removing it entirely (as with Division 2 of the Independent Commission Against Corruption Act 1988 (NSW)) (ICAC Act). Such a move would better ensure a Victorian public sector that actively resists corruption.

More public examinations, more often

Likely interrelated with the high evidentiary threshold required to commence investigations just addressed, IBAC is not holding enough public hearings. Public hearings appear to be the most effective way of encouraging witnesses to come forward and of enhancing public trust in the process.5 From 2012-2017, IBAC held five public examinations. The NSW ICAC, on the other hand, held 30.6

It is wishful thinking to assume that Victorians are more immune than our NSW counterparts, by a factor of six, to the human frailties that lead to corruption. IBAC needs to ensure that more public examinations occur, and more often.

Expanded powers to search and arrest corrupt police officers

The new IBAC Commissioner Robert Redlich QC has stated that IBAC's current powers to investigate police misconduct are inadequate and not fit for purpose. Mr Redlich also noted that 'IBAC is the only commission throughout Australia whose investigators do not have the same powers as a police officer'.

Taking the NSW ICAC as a starting point, section 101B of the ICAC Act grants an ICAC Commission investigator all of the functions of a police office of the rank of constable. Where the NSW investigators are seconded police officers, Victorian legislators should seek to design an investigator role that is culturally distinct from Victoria Police, but with similar powers.

THE WISH LIST OF THE PREVIOUS COMMISSIONER

The inaugural Commissioner, Stephen O'Bryan QC (who ended his non-renewable five year term on 31 December 2017), has also called for the following changes:8

  • 'Follow-the-dollar' powers, similar to those extended to the Victorian Auditor-General as part of the 2016 reforms. This would allow IBAC to follow public funds and ensure that they are spent effectively and transparently.
  • Power to recover the proceeds of crime. This power is currently vested solely in the Office of Public Prosecutions.
  • Funding to be made directly through Parliamentary appropriations, in order to best preserve statutory independence.

These reforms seem sensible and would further strengthen IBAC's functions if implemented.

IBAC has come a long way in its first five years. It has succeeded in uncovering instances of serious corrupt conduct, and has assessed and investigated a wide range of allegations. It has also undergone much needed reform of its key legislation. However, there is much that could be done to improve IBAC's functioning and results. Greater flexibility, independence and funding would all assist IBAC in ensuring a Victorian public sector that actively resists corruption.

Footnotes

1Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 15(1A).

2Ibid s 15(2)(b).

3 Ibid s 18.

4 National Integrity Committee, 'Principles for designing a National Integrity Commission' (Australia Institute, November 2017) 5 < HTTP://WWW.TAI.ORG.AU/SITES/DEFUALT/FILES/PRINCIPLES%20FOR%20DESIGNING%20A%20NATIONAL%20INTEGRITY%20COMMISSION.PDF >.

5 See generally the anti-corruption Commissioners quoted at ibid, 6–7.

6 Katie Walsh, 'Judges tell Canberra how to catch federal 'Obeids'', Australian Financial Review (online), 9 April 2018 < HTTP://WWW.AFR.COM/BUSINESS/LEGAL/WANT-TO-CATCH-FEDERAL-OBEID-DONT-USE-VICTORIAS-IBAC-JUDGES-PLEA-TO-CANBERRA-20180407-H0YH1B >.

7 See: https://www.theage.com.au/national/victoria/new-anti-corruption-boss-warns-ibac-too-shackled-to-investigate-police-properly-20180519-p4zgb1.html

8 IBAC, 'Exposing and preventing corruption in Victoria – Special report on IBAC's first five years' (20 December 2017) < HTTP://WWW.IBAC.VIC.GOV.AU/DOCS/DEFAULT-SOURCE/SPECIAL-REPORTS/IBAC-FIVE-YEAR-REPORT-DECEMBER-2017---WEB-ACCESSIBLE.PDF?SFVRSN=2C4A7075_11 >.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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