IBAC INVESTIGATION THRESHOLD TO BE LOWERED

Following an announcement by the Victorian Government on 16 September, new legislation affecting the operation of Victoria's anti-corruption body, the Independent Broad-based Anti-corruption Commission (IBAC), has been introduced in parliament. Perhaps most significantly, the amendments provide that the threshold for investigations by IBAC will be lowered so that IBAC can investigate whenever it “suspects on reasonable grounds” that serious corrupt conduct has occurred.

Currently, section 60 (2) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (attached) states that IBAC must not investigate conduct “unless it is reasonably satisfied that the conduct is serious corrupt conduct” . While this is ostensibly similar to the proposed investigation threshold, the judgement of the Australian High Court in George v Rocket 1990 93 ALR 483 indicates that grounds for suspicion should be more easily found than grounds for satisfaction in this context. In April 2014 IBAC released a report in which the body expressed its concern that the current legislative threshold has undermined IBAC’s ability to investigate corrupt conduct.

The precise effect of the changes going forward is unclear, but the ability to investigate based on reasonable suspicion signals a potential increase in IBAC inquiries directed towards business and government. Other key changes which the legislation seeks to introduce include: 

  • empowering IBAC to undertake preliminary investigations before determining whether to dismiss, investigate or refer a complaint or notification (per clause 14 of the Integrity Legislation Amendment Bill 2014 (amending bill));
  • introducing a uniform requirement for public sector bodies to notify IBAC of any matters that they suspect on reasonable grounds involve corrupt conduct (per clause 11 of the amending bill);
  • including misconduct in public office as one of the common law offences that can constitute corrupt conduct (per clause 3 of the amending act);
  • streamlining provisions for investigation of complaints by the Ombudsman, including greater power for the Ombudsman to discontinue investigations where the Ombudsman considers further investigation is not warranted (per clauses 38 and 42 of the amending bill); and
  • requiring IBAC and the Ombudsman to provide information to a Parliamentary Committee where Parliament has asked the Committee to investigate a possible breach of privilege or contempt of Parliament arising from an IBAC or Ombudsman's report (per clause 9 of the amending bill).

CALLS FOR FEDERAL ANTI-CORRUPTION AGENCY

Successive federal governments have chosen not to introduce a federal anti-corruption body, and the issue has generated discussion in recent months following Independent Commission Against Corruption (ICAC) hearings in New South Wales politics. It has been reported by the ABC that corruption findings against members of the NSW parliament have the potential to impact federal party members.  Former Supreme Court justice and member of the Accountability Roundtable Stephen Charles has voiced support for the introduction of a federal equivalent of ICAC.  However, the government is yet to take steps toward introducing a ’Federal ICAC’, and earlier this year the Australian Senate voted 43-9 against a private member’s bill introduced by Greens leader Christine Milne to establish a national anti-corruption body. If a national anti-corruption body is established, politicians and businesses would be closely scrutinized, particularly in relation to the awarding of government contracts.