IBAC: Victorian reforms look to avoid ICAC ‘problems’

By David Donaldson

Friday January 29, 2016

The Victorian government has responded to criticisms that proposed reforms of the state’s anti-corruption body will leave it “much weaker than NSW’s ICAC”, arguing it is trying to reach “balance” and “avoid the problems” experienced by the Independent Commission Against Corruption.

In contrast to the powerful NSW body, the reformed IBAC will be able to conduct preliminary inquiries into suspected instances of corruption with limited powers, but will still be required to pass the threshold of having reasonable grounds that the conduct in question constitutes corrupt conduct before it can move to a full inquiry and use its full powers.

The Victorian government has justified not giving its Independent Broad-based Anti-corruption Commission the extensive powers of its northern cousin by pointing to the controversies seen to have resulted from ICAC’s significant powers. A government spokesperson told The Mandarin they “have got the balance right in this legislation” to ensure IBAC “is an effective anti-corruption body while avoiding problems of the kind experienced by ICAC.”

The proposed legislation “expands IBAC’s jurisdiction and makes it easier for IBAC to commence an investigation into suspected corrupt conduct, while ensuring appropriate safeguards are in place,” according to the government.

This comes as former Victorian Supreme Court judge Stephen Charles claims the changes proposed by the government, despite strengthening IBAC, mean it will still have more difficulty than ICAC figuring out what information it needs to properly investigate, as well as giving suspects the chance to destroy evidence.

“The consequence is that the amending bill sets up a new threshold, the point at which IBAC may proceed from a preliminary to a full investigation. In the preliminary phase, IBAC will have difficulty framing a request for information to a departmental head, or identifying documents to seek from individuals. As soon as a suspect becomes aware of a preliminary inquiry or an investigation, the suspect may seek a court order to stop IBAC’s inquiries, and IBAC will then be forced to place before the court — and the suspect — all of the information it has obtained and its grounds for seeking to investigate. And the suspect will achieve delay, precise knowledge of what IBAC is doing, and the opportunity to hide or destroy evidence.”

When enacted, the new law will broaden the definition of “corrupt conduct” by including misconduct in public office, he wrote in The Age this week.  Nonetheless, due to the “Victoria’s IBAC will be in a much weaker position than NSW’s ICAC”.

NSW’s ICAC has extensive powers. It is able to investigate, using its full powers, basically any allegation based on suspicion of corruption. These abilities makes it hard for anyone under investigation to obstruct a ICAC’s pursuit by launching proceedings for a court injunction. ICAC also tends to use public hearings, which can act as a “name and shame” deterrent, whereas IBAC conducts most of its examinations in private.

These extensive powers and the public nature of its hearings make many nervous. The termination of NSW premier Barry O’Farrell’s career for failing to declare a $3000 bottle of wine undoubtedly strikes fear into the heart of many a politician.

The Law Institute of Victoria said it believed “the appropriate balance in only providing limited investigative powers at the preliminary stage appears to have been struck in the bill … This power will assist IBAC in determining whether to continue with an inquiry or whether to refer or dismiss a complaint.”

The LIV welcomed the government’s proposed amendments, arguing they “will assist in strengthening IBAC’s ability to investigate and report on corrupt conduct”. Among the positive changes, it highlights the requirement that public sector heads notify IBAC of any matter that they suspect on reasonable grounds involves corrupt conduct, the removal of the requirement that corrupt conduct be “serious” to warrant investigation, and a broadening of the ability to investigate conduct that involves cases of fraud on a public official which involve no wrong-doing on the part of the public official, among other changes broadening IBAC’s jurisdiction.

It highlighted as a concern, however, the importance of adequately resourcing IBAC to allow it to fulfill its mandate in investigating corrupt conduct and to allow it to take a greater role in investigating police misconduct.

The institute holds some remaining concerns that have not been addressed in the government’s bill, including:

  • there is no amendment to ensure complainants can obtain access to documents through FOI applications regardless of whether the complaint is lodged with IBAC or the police;
  • IBAC referring complaints about police misconduct to Victoria Police, which LIV argues should not be investigated by police;
  • it is still at the discretion of the speaker of the Legislative Assembly or the president of the Legislative Council to pass on protected disclosures against members of parliament to IBAC, which is at odds with the mandatory requirements for other organisations;
  • the definition of what corrupt behaviours IBAC can investigate is still more limited than ICAC, with LIV arguing that all indictable common law criminal offences should be included, rather than a specific and thus limited list.

The LIV said it would continue to advocate for these changes in 2016.

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