IBAC An Independent Broad-based Anti-corruption Commission for Victoria November 2010 Contents Executive Summary Introduction • There’s something wrong in Victoria • Corruption matters • ‘Australia’s least transparent state’ ‘Second to none’ – Victoria’s creaking anti-corruption system • Office of Police Integrity (OPI) • Auditor-General • The Ombudsman • Labor’s Local Government Investigations and Compliance Directorate (LGICI) • Gaps in jurisdiction Designed to fail – The Government’s new integrity system Gaps in jurisdiction under Labor’s proposed model Coordination between integrity bodies Summary The Liberal Nationals Coalition Plan: A Strong and cohesive anti- corruption system for Victoria Broad-based and cohesive – jurisdiction Comprehensive and independent - powers and obligations Structure Oversight Recommendations Implementation Appendix Coalition Anti-Corruption Conference Program 2 Executive Summary Context With the exception of Victoria and South Australia, every state in Australia has an independent, broad-based anti-corruption commission. The most recent is that set up in Tasmania (2010) and the oldest are those of Queensland and NSW, established over 20 years ago. Over the past ten years, many across the political spectrum have called for an independent anti-corruption commission in Victoria. Liberal Nationals Coalition Leader, Ted Baillieu, called for an independent broad-based anti-corruption commission in 2007 and promised to establish such a body in government. The Liberal Nationals Coalition believes that there are many issues concerning possible corruption in Victoria that need investigation and that there has been too little accountability under the Bracks/Brumby Government, which despite all its rhetoric to the contrary in Opposition, now stands accused of being the most secretive and least transparent government in the country. After years of denials and claims that Victoria has an anti-corruption system “second to none”, interspersed with piece-meal and half-hearted attempts to appear to be doing something, the Labor Government was forced by public pressure into commissioning a review of Victoria’s integrity system in November 2009. The Proust review found gaping holes in jurisdiction in the present system. It found that only one group in the public sector, sworn police, are subject to a body with full investigatory powers. Labor’s proposed integrity model The Labor Government’s plan for an anti-corruption commission of sorts, announced in June 2010, is quite unlike the international best practice anti-corruption commissions operating around Australia. Its unnecessary complexity and bureaucratic structure appears designed to fail. Nor does it fix holes in the present jurisdiction, instead ensuring that members of Parliament, ministers and their staff will not be subject to the same level of scrutiny as other parts of the public sector. Under Labor’s proposal the following bodies are not subject to the full range of investigative powers unless several different agency heads concur and the Parliamentary Integrity Commissioner decides to refer allegations involving members of Parliament, ministers and staff. • Ministers • Ministerial staff • Members of Parliament • Staff of Members of Parliament • Local councillors • Local council staff • Judiciary • Judicial staff • Public servants 3 Labor’s proposed model is a Clayton’s anti-corruption commission from a government that depends on spin and secrecy and its purpose is a political one – to appear to match the Liberal Nationals Coalition’s plan. Independent Broad-based Anti-corruption Commission The Liberal Nationals Coalition has studied the Australian independent, broad-based anti-corruption commissions which are considered world’s best practice and held a public anti-corruption conference in February 2010, drawing together experts from around Australia and the world. While the Labor Government has been content to tack on more separate commissioners to an overly complex and unwieldy system, the Liberal Nationals Coalition believes that Victorians will be better assured of integrity in government with an independent, broad-based anti-corruption commission on the model of those in other Australian jurisdictions. The Liberal Nationals Coalition’s plan will give Victoria an international best practice anti-corruption commission, designed to expose corruption in the public sector and change public culture to help prevent corruption and serious misconduct from happening in the future. The Liberal Nationals Coalition’s independent broad-based anti-corruption commission, to be known as IBAC, is modelled most closely on NSW’s Independent Anti-Corruption Commission which was one of the first of its kind to be established in the world. Unlike ICAC however, IBAC will also cover the police. One stop shop The Liberal Nationals Coalition’s IBAC will be a one-stop shop like other independent anti-corruption commissions in Australia including the Crime and Misconduct Commission (Queensland) and the Corruption and Crime Commission (Western Australia), covering the entire public sector including local government, the judiciary and the police, members of Parliament, ministers and staff. Experts believe that independent anti-corruption commissions are the more effective for being broad- based. IBAC will investigate, expose and prevent corruption involving or affecting public authorities and public officials as well as educate public officials about its harmful effects on public administration and the community. Corrupt conduct is defined as any conduct that adversely affects or could affect the honest or impartial exercise of official functions by any public official or any public authority. It may also involve the dishonest or partial exercise of a public official’s functions. Corrupt conduct is not corrupt conduct unless it involves a criminal offence, a disciplinary offence or reasonable grounds for dismissal or a breach of a code of conduct. 4 Operation, structure and powers Any person can make a complaint to IBAC about corruption and IBAC will decide whether to investigate and can refer matters to other public authorities. IBAC itself will have own motion powers to conduct a corruption inquiry. IBAC will have the powers of a standing royal commission to compel the testimony of witnesses, documents or other evidence. It will also have powers, subject to Commonwealth approval, for telephone interception and to carry out covert surveillance and controlled operations. As in all best practice Australian independent broad-based anti-corruption commissions, the organisation will be headed up by a commissioner on a non- renewable, five year fixed term appointment. The fixed term helps to ensure the independence of an anti-corruption commission from the government executive and is noticeably lacking in Labor’s proposed model. The commissioner will be appointed by the Governor and must be qualified to be appointed as a judge of the Supreme Court. A deputy commissioner will assist the commissioner as required, also on a five year fixed term. The function of IBAC is to investigate any allegation or complaint of corrupt conduct, including any matter referred by either House of Parliament. IBAC must communicate its results to the appropriate authorities and has the power to make findings and form opinions on the basis of its investigations whether or not these relate to corrupt conduct and can formulate recommendations for action in relation to these findings or opinions or results of investigations. IBAC’s role is to assemble evidence admissible in a prosecution and submit it to the DPP. IBAC may also provide evidence to the Attorney General of another state, any public authority or the Commonwealth. IBAC will work cooperatively with the Auditor-General and the Ombudsman to provide a seamless coverage of the public sector from probity and maladministration issues to corruption. Unlike Labor’s proposed model which prohibits public hearings, IBAC as with every other independent, broad-based anti-corruption commission in Australia, will hold public or private hearings or a combination of both as required. Experts in the field believe that it is important for public confidence that an independent broad-based anti-corruption commission should have the discretion to hold public hearings. In determining whether it is in the public interest to conduct a public hearing, IBAC must consider the benefit of exposing the matter to the public to raise awareness of corrupt conduct, the seriousness of the allegation and the risk of undue prejudice to reputation to determine whether public interest is outweighed by private interest in preserving the privacy of the individual. Oversight The independence of IBAC will be ensured by a robust oversight system. What is missing from the present system in Victoria is oversight and therefore accountability, notably for the Office of Police Integrity. The result has been a number of allegations of unethical behaviour and partiality which have gone untested. 5 The exceptional powers provided to IBAC demand that there be strong oversight as a check on potential abuse. It is acknowledged that the same type of oversight by parliamentary committees has worked well for 20 years in NSW and Queensland. At present, there is no genuine oversight of the OPI by Parliament. Integral to the accountability of IBAC will be oversight by the Parliamentary Joint Committee on IBAC which will monitor the operation of IBAC. The IBAC commissioner must make an annual