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?
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:
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’.
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.
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:
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:
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’.
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.
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. From 2012-2017, IBAC held five public examinations. The NSW ICAC, on the other hand, held 30.
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.
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 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:
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.
 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 15(1A).
 Ibid s 15(2)(b).
 Ibid s 18.
 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>.
 See generally the anti-corruption Commissioners quoted at ibid, 6–7.
 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>.
 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>.
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