Victoria’s integrity body, the Independent Broad-based Anti-corruption Commission (IBAC), is a deeply flawed institution. It has been hobbled by the Liberal government that created it and in the too-limited reforms implemented by the Labor government that followed. It is clear that both major parties have been reluctant to give the body the teeth it requires to be effective. New Victorian Premier Jacinta Allan must approach reforming the body with an open mind if she is to begin rebuilding trust in the government’s integrity.
Two of the biggest flaws were on display in the run up to the 2022 election: the lack of public hearings and the delay in publication of IBAC’s reports. There was considerable demand to know whether then Premier Dan Andrews and the government more broadly had engaged in corrupt conduct before the electorate came to vote.
In Victoria, public hearings are only allowed when “exceptional circumstances” are said to require one. This requirement for “exceptional circumstances” must inevitably reduce substantially the number of public hearings which IBAC is able to conduct, and in any event is a serious problem for IBAC because of the vagueness of the phrase’s meaning, and the difficulty of determining in advance whether a court will permit an investigation to proceed in public; IBAC will be required to expose to the court (and the suspect/s) all the evidence it has obtained before the court can say whether the circumstances are exceptional.
Public hearings fulfil important functions in corruption investigations and are a crucial mechanism in meeting corruption commissions’ objectives of promoting integrity and exposing corruption. They expose corruption and misconduct to the public; they increase public trust that allegations of corruption are being investigated fairly and in the public interest; they make investigations more effective by encouraging witnesses to come forward with new evidence; they educate the public sector and community about corruption and misconduct issues; they improve the integrity of the public sector; and they deter others from engaging in corruption and misconduct in the future.
IBAC findings tend to be rendered in outcome letters to the relevant institution where the misconduct occurred. The legislation ought to be amended to permit all recommendations to be published.
Results of corruption inquiries ahead of the election were hampered by the body’s badly constructed process for dealing with adverse findings and the individual’s right to respond. Rather than the current process which allows interminable challenge in the backlog-hampered courts, the Victorian legislation ought to change the procedure to reflect the accepted legal standard that natural justice has been accorded if the person/s facing adverse findings have been warned.
Royal Commissions, Boards of Inquiry and NSW ICAC all follow a procedure in which, at the end of hearings, counsel assisting makes submissions during which written notice of adverse comment is given to those affected, and their legal representatives are able to make a submission in response. The Commissioner may then, without any further step, complete a report and publish it.
The legislation for the IBAC ought to be changed to reflect the more transparent standard in the NSW ICAC.
The IBAC’s problems are more foundational than this, however, and the legislation’s definition of “corrupt conduct” itself needs redrafting.
By s.4, conduct is not corrupt unless it constitutes a crime. Much misconduct that IBAC should be investigating does not constitute a crime, at least at the outset of an investigation. By s.60(2), IBAC “must not conduct” an investigation unless IBAC suspects on reasonable grounds that it constitutes corrupt conduct. For example, the Daintree Report involved a $1.2 million contract awarded to a union-established training group in which improper influence compromised the procurement process. IBAC found that the evidence fell short of corrupt conduct as defined by s.4, but there had been significant breaches of duties and obligations by ministers, ministerial advisers, and senior public servants. Serious conflicts of interest were exposed, without amounting to crimes.
Neither the ICAC Act in NSW, nor the NACC Act in Canberra requires the conduct to be criminal before there can be an investigation.
Shamefully, Premier Dan Andrews said on the Daintree Report’s release that there should not have been an investigation at all, and that the report was only “educational.” Victoria’s aberrant definition of “corrupt conduct” enabled him to say this: such circumlocutions can only be prevented by drafting a definition that properly serves Victoria.
Furthermore, the Integrity Oversight Committee which oversees the actions, inter alia, of the IBAC and the Ombudsman has been shown to have committed highly partisan misbehaviour, attempting to damage and undermine the actions of IBAC in revenge for IBAC’s criticisms of the Andrews government in its reports. The government not only had four of the eight members of the committee, but until April this year also had control by means of a government member holding the Chair.
The legislation governing this committee – The Parliamentary Committee Act (2003) – must be amended so that it cannot be chaired or controlled by the government of the day. IBAC should be able to provide confidential information to the committee when IBAC is satisfied it will not prejudice ongoing investigations. The committee must be required to observe principles of procedural fairness and not make findings or publish a report without giving the party affected an opportunity to comment on proposed findings.
The latter years of the Andrews government had been strongly criticised because of the Premier’s treatment of the IBAC Commissioner and the Ombudsman, and his disdainful disregard – even contempt – for criticisms that there had been a lack of integrity and actual misbehaviour in his method of government. The vast number of ministerial advisers (said to be over 300) working for the Premier’s Office and ministers, and who owed allegiance only to the Labor party rather than the community at large, together with the centralisation of government that had occurred in the last decade, had attracted hostile comment even from senior members of the Labor party.
There is now an opportunity for Premier Jacinta Allan to strike out on an entirely new path. Votes for integrity in recent Australian elections has been substantial; Allan might find a wave of support from the Victorian community if she chooses to work with and benefit from the excellent guidance and support that our integrity agencies are so well-qualified to give.
Stephen Charles is a retired judge who served on the Supreme Court of Victoria Court of Appeal between 1995 and 2006. He is a member of the boards of the Centre for Public Integrity and the Accountability Round Table.
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