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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