By Stephen Charles and Lucy Hamilton
The Victorian government has just acted to ensure that the Independent Broad-based Anti-Corruption Commission (IBAC) is neutered by a subtle gambit in the crafting of the advertisement seeking applicants for the position of Commissioner.
The first requirement in the ad was for a “leader with demonstrated experience and exceptional capability in: public sector leadership and management”. This can only have been intended to place that role not in the hands of someone independent and of judicial stature, but someone with experience in the public service, someone suitable for the role of chief executive officer, rather than the Commissioner of IBAC.
The advertisement that was released for Victoria’s new IBAC Commissioner was clearly crafted in defiance of the IBAC Act. The act specifies that to be eligible for appointment as a Commissioner, a person must be a judge of the High Court, the Federal Court, or a Supreme Court, or be qualified for such an appointment.
Within the Victorian Constitution, however, these requirements were expanded to include people “admitted to practice for not less than five years.”
The advertisement’s wording makes it clear that hardly any judges or barristers could qualify for the role. Judges and leading senior counsel almost invariably have little experience or known capability in public sector leadership and management, and therefore cannot have developed an understanding of the operation of the public sector, its governance or accountability framework. It is believed no judge or senior king’s counsel was on the short-list for consideration, and, if that is correct, the framing of the advertisement provides the explanation.
IBAC’s Commissioner must have the experience, knowledge and standing to challenge the most senior figures in politics, public service and police, and on the bench, if necessary, in the course of performing these duties. The Commissioner must be equipped to be able to decide matters such as whether to start an investigation, including whether there are reasonable grounds for suspecting a crime; whether to investigate a supreme court judge; whether to enter police premises to seize evidence; whether to authorise phone-tapping.
Victoria’s integrity system, consisting of the IBAC, Ombudsman and Auditor-General’s Office, performs a crucial role in ensuring Victorians can have full confidence in the state’s public sector and that it is free from corruption. Each of these bodies can be damaged in various ways to reduce their effectiveness.
Integrity commissions such as IBAC can be unduly limited by restrictive legislation, by funding cuts, by the quality of the staff appointed as Commissioner and Deputy Commissioner, and by reducing their capacity to make public their investigations into corruption and misconduct.
In its first decade of operation, IBAC has suffered from time to time: inadequate funding, flawed legislation, and the inability to expose misbehaviour to the public by matters such as the requirement for “exceptional circumstances” to exist before a hearing can take place in public. Victoria’s IBAC Act limits the definition of corrupt conduct to criminal matters, which would exclude, for example, the pork-barrelling that so disgusted the nation in the 2022 federal election.
Notwithstanding these problems, IBAC has survived and thrived by virtue of the quality of senior staff, in particular its Commissioners, and produced admirable reports after lengthy investigations demonstrating repeatedly the misbehaviour of aspects of the Victorian government and public service.
Victoria is not alone in this battle between politicians and integrity bodies. Only NSW’s Independent Commission Against Corruption (ICAC) has the strength required, yet several NSW Premiers have repeatedly praised ICAC for its great work protecting the state from corruption, making them the rare exceptions to the rule.
In September 2021, South Australia’s legislature combined across party lines to attack the powers of investigation of their state’s anti-corruption commission. The Commissioner at the time, Ann Vanstone, described her powers as having been “decimated.”
The definition of what constitutes “corruption” was reduced and the ability to investigate maladministration and misconduct was removed.
No MP in either House, not even the Greens, voted against these attacks on the efficacy of the South Australian ICAC.
In 2020, the Australian National Audit Office (ANAO) had its funding cut “in revenge” for its crucial findings about corruption of the sports grants program and carparks funds under the Morrison government.
Preventing public hearings is one of the most harmful of the restrictions besetting state bodies. These are a crucial resource to show that integrity is being pursued, to attract witnesses and to educate our politicians and public servants on what corruption might look like. They are regarded by most commissioners as a critical factor in demonstrating what is corruption to the public and in their principal function of exposing corruption.
The National Anti-Corruption Commission (NACC), finally legislated after long consultation by Attorney-General Mark Dreyfus’s department, is only able to stage hearings in public in “exceptional circumstances.” This is the result of a deal with the Coalition and is a significant blight on the most important development in the Albanese government’s integrity platform. It will certainly reduce severely the number of the NACC’s public hearings and the public’s trust that corruption is being pursued.
The block to transparency in the expression “exceptional circumstances” in the NACC Act was taken from the IBAC Act. No other state’s integrity body has a similar provision.
It is particularly important that the new Commissioner of IBAC is strong enough to steer the body towards the reforms that Victorians require for its anti-corruption remit to be carried out in a way that fosters confidence. The South Australian government too is looking to restrengthen their ICAC.
One of the principal functions of anti-corruption bodies is in exposing and preventing the corruption and misconduct in government that threatens in so many ways to undermine democracy.
The more subtle the attack on the integrity body, the harder it is for the public to perceive the effects brought about by the manipulation. The framing of this advertisement meant that some of the people best qualified to protect Victorian democracy were apparently not represented on the short-list.
This was first published in Pearls and Irritations as Only parliaments are able to set up integrity bodies, but politicians hate and fear them
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. He is the primary author of the 2022 book: Keeping them Honest: the case for a genuine national integrity commission and other vital democratic reforms.
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I’m unnerved by the deadly quiet here…
Volunteers!! (who?) No politician of some cunning, experience and evil wisdom will pass a weapon level piece of apparently useful legislation (not often anyway) for a weapon may be used for Murder, assassination, suicide or to cause harm wrongly.
Politicians today aspire to be stars in the ranks of celebrities. Being good at reading their lines is never enough. Whilst on stage they just want to hurl gifts across their audience. Whilst in their trailers they hurl demands at their genuflecting minions, and otherwise take advice from their agents on commissions.
Why should they let anything else get in the way of their self-defeating fantasies. Certainly not plod.
After all, in the parliament they are not allowed to mislead, or they’ll get a ‘tut-tut’ from Punch and Judy.
By tradition, enough is enough, surely.
Labor needs to be better than this.
I don’t know about anybody else, but they have disappointed me.
Incumbent government seeking to increase their wieldable powers whilst simultaneously eroding oversight and accountability is nothing surprising, it kinda seems to be a default setting for people when we get gifted with elevated authority.
It just chafes more when the ‘good guys’ succumb.
Does politics ever change? It will do whatever it can to obtain its ends.
It can be kinda like international diplomacy, a tricky and obscure beast that has a language and m.o. all of its own.
I have worked across all states on significant projects that involve both state and federal governments, as a commercial / contractual auditing forensic specialist. And to say the least they all have varying levels of competence and operational style, as do the contractors, designers and lawyers. The laws and avenues of redress and settlement also vary.
Suffice it to say, the layers of complexity and hurdles can be influenced by the political relationships between the state and federal governments. In NSW when advocating for contractors, it can be handy to have ICAC as a bargaining chip, whilst pursuing legal settlement.
In years gone by Victoria was known by the locals as ‘the People’s Republic’. It was periodically strangulated by fluffing around with divergent ideological opinion to the effect that very little was achieved as it plodded along ruminating on past gold glories. And whenever there were international headwinds it was soon like a ghost town. After Kennett over 7 years gutted the joint, in the 2000s, Labor broke through with 10 years of slow but sure reform, but it was not liked by the elite, especially rural elite, and it slipped back to Liberal sleepwalking for 3 years under the flakey, do-little, Bailieu and Napthine.
As the argy-bargy of the feds during the post-GFC struggle, saw in 2013, the brutal but useless Abbott brought to power, followed by 9 years of LNP. That entire fed government genuflecting to the old empire, became absurdly Sydney-centric, doling truck-loads of funding to NSW (read Sydney) and opening the immigration flood gates, so as to boost the coffers and to enfranchise industrial exploitation. It facilitated the inflow of foreign dark money sending the residential property market skyrocketing, and became a cringing toady hole for mega-multi-national and mining tax shirkers. It did little else. But ignore Victoria for political point-scoring, and paling Howard into insignificance, embedding abject corruption into the political process, fleecing every ordinary folk it could get its claws into.
By 2014 Victoria had its eyes widened, and brought in Dan. He set about seeking to bring Victoria’s infrastructure out of the late 19th early 20th century doldrums. It was evident that attracting interest and assistance from the feds would not be possible whilst they drained the country’s taxations into privateers and the bloating of Sydney. Yet he pushed on with gritty determination to be a benefactor for Victoria. Eventually, as Sydney became exhausted by its post-prandial bloat, that the feds, wishing to maintain their fiduciary trough, decided that immigration would be diverted to Melbourne and surrounds.
Dan being a fine strategist, mustered all his resources and set to work using every leverage available to him to bring the state to modernity. Given the proclivities of the LNP feds and their antipathy to the now Labor Victoria, he had little choice but to beat them at their own game. Much to the pleasure of his electorate, he largely succeeded in his quest for modernization.
Since the fed and NSW state implosion of the LNP, and a fed Labor government in place in Canberra, we have become aware of the lies, guile and near criminality of the decade of LNP (non) governance. And what Dan had to contend with.
He did a great job, whilst certainly operating with a less than desired transparency and ethical purity. But one has to ask, in the circumstances did he have a practical choice? It will take Labor years to reconstruct reasonable democratic process in the public service and governance, particularly federally. And with Labor in place and hard at it federally, it was the right time for Dan to relinquish the reins.
Jacinta Allan has a hard act to follow and big boots to fill. No doubt she will have apprehensions, and those may be reflected in her reticence with the IBAC mods.
I’m sure none of us like the ‘exceptional circumstances’ incision in the NACC and IBAC acts pertaining to publicly available hearings, and we can hope that with a growth in confidence it can be redefined in favour of transparency.
At least we have the good guys in, doing the hard yards.
As for the infantile trap in advertising for the new IBAC Commissioner, it is certainly lower than a snake’s bottom. C’mon Jacinta, get a grip, it does Labor no good.
Dont be, Lucy. Folk are still getting over the Voice and Gaza.
Watching Prof Michelle Simmons on Quantum computing snapped me out of my own trance. Both exiting and terrifying.
As for Labor, it has gone so backwards after such a promising start.
Unimaginative return to control freakery, as ever with out politics..
Perhaps it’s just quiet at home Lucy.
Quietness can sometimes be benign and good, such as likely here out of respect and deepest sympathies for you in your recent loss.
who thinks it is time where judges and lawyers no longer need to be the controllers??? the way we hear labor is via the media and they fiddle whilst others hold
‘the doesn’t go far enough’ flame. QED, michael.
Thanks so much, Herbert.
WAM. It would be much better to have good judges in charge. It is the politicians protecting their secrets and likely corruption that is the problem.