2012 has been a big year for anti-corruption in Australia. High profile cases came before the New South Wales Independent Commission Against Corruption (ICAC), the Callinan review of Queensland’s Crime and Misconduct Commission (CMC) was announced, a bill for a National Integrity Commissioner was proposed, and Senator John Faulkner’s speech at the Accountability Round Table public conference last week drew much-deserved attention.
Parallel to these events has been ongoing debate regarding Victoria’s new integrity system and the Independent Broad-based Anti-corruption Commission (IBAC). So, how does Victoria’s proposed system compare to those in the other states? How effective will it be?
Integrity systems in other states
Currently, Western Australia, Queensland, and New South Wales have independent bodies empowered to investigate corruption and misconduct of the police, public servants and politicians, as well as to investigate organised criminal activity (a vital measure given the well-known tendency for collusion between corrupt officials and organised criminals).
Responsibility for these powers need not lie with a single institution. New South Wales, for example, adopts a triangulated approach to addressing crime and corruption, with the Police Integrity Commission investigating police corruption, the ICAC investigating other corruption, and the New South Wales Crime Commission investigating organised crime.
In Queensland and Western Australia, on the other hand, the CMC and Corruption and Crime Commission each take sole responsibility for all these matters.
Regardless of how a system is structured, it it vital that it is able to investigate the above matters in a clear, coherent, transparent and independent manner.
The Victorian system
When proposed in 2009, Victoria’s IBAC was intended to improve existing anti-corruption efforts in the state by creating a one-stop anti-corruption shop; amalgamating and expanding upon the Office of Police Integrity (OPI) and the Ombudsman to create a body which would investigate politicians, police officers and public servants.
So far, however, the proposed system fails to measure up to the standard set by other states. It will still not, for example, provide an independent investigative body or bodies with the capacity to look into connections with organised crime.
Aside from arguments about what the new system might lack, however, there is cause for concern that what it will have may be ineffective, given the IBAC’s inability to investigate cases of misconduct.
This concern is not new. Since the IBAC’s creation in November 2011, criticism has centred on the restriction of its purpose to investigating only “serious” corruption - and not misconduct - of public servants and politicians, with stringent evidentiary requirements to be met before commencing investigation.
Why does investigating misconduct matter so much?
Misconduct and corruption
The capacity to investigate misconduct is essential for several reasons.
First, normalised misconduct often serves as a kind of gateway to willing participation in corrupt behaviour.
Second, cases of serious corruption often emerge from investigations into related minor incidents of misconduct.
Third, the power to investigate misconduct allows for the prosecution of individuals who might otherwise fall through corruption-specific legislative loopholes, as has been demonstrated in the other states
In theory, the new system sees misconduct being investigated by the Ombudsman. The restriction of IBAC’s investigative powers to “serious” corruption implies that misconduct and acts of corruption that are not serious would be, in the words of IBAC minister Andrew McIntosh, “referred back down to the ombudsman”.
But no clear definition of what constitutes “serious” corruption exists. The latest of the two legislative amendments in the last twelve months, released last week, appears to further muddy the waters by creating overlapping definitions of “corrupt conduct” and misconduct.
Last week’s amendment also led to public criticism from Ombudsman George Brouwer, whose office’s powers would be significantly curtailed.
Brouwer has been particularly outspoken in suggesting the new system will be less effective, identifying that the legislation risks rendering the Ombudsman no longer independent.
Even if the definition of serious corruption were clarified, there is now the question of whether the Ombudsman will remain effective and capable of investigating misconduct and “non-serious” corruption.
There are also concerns that while the IBAC will absorb the responsibilities of the OPI, its coercive powers have been pared back. Given the tendency for corruption in some sectors, particularly in the police force, to be protected by its organisational culture, coercive powers are fundamental to investigative success.
In addition, while the IBAC could in theory adopt a similar approach to public hearings as the NSW ICAC, there is yet to be a firm commitment to do so. Every other anti-corruption body in Australia holds public hearings, and regards them as central to ensuring public support and keeping the investigative process transparent.
The NSW ICAC’s use of public hearings to manage media coverage of such investigations is well-regarded, with staff from the WA CCC attributing this as key to the ICAC’s sustained success as a corruption watchdog.
With Stephen O'Bryan, SC, to become the permanent head of the body (replacing Ron Bonighton, who steps down in December), hopefully a commitment to such hearings will be made soon.
How did we get here?
Undoubtedly, designing such an institution can be devilishly difficult. Why, then, have so many been so critical? And why have some problems - particularly those regarding the definition of serious corruption - remained unresolved?
It is possible that widespread criticism has been the paradoxical result of a conservative approach to engaging with the media, for fear of “getting it wrong” and attracting negative publicity. The desire to get all the details “ironed out” before revealing them (a priority emphasised repeatedly by government), has led to a lack of adequate media engagement. As such, the IBAC has been criticised in the media for the organisation’s structural inconsistency and lack of transparency.
As for persistent problems, we may be witnessing a “Greiner complex”, a political hangover from the resignation of NSW Premier Nick Greiner in 1992 after being investigated by the very ICAC his government created. In Victoria, this manifests in undue attention being placed on avoiding the investigation of minor offences by ministers and ministerial staff, and a desire to have extensive parliamentary oversight of the investigative bodies.
As a result, the current legislation risks overlooking the sorts of problems that often grow into larger, systemic corruption.
What matters now
Regardless of why the Victorian system has taken the shape it has, what matters now is how effective it is likely to be. Concerns that it will lack the depth and breadth of those in other states are warranted.
Some of these concerns have been voiced by critics of the government’s efforts. Former Supreme Court judge Tim Smith, QC, who earlier this year labelled the IBAC a “toothless tiger”, has now suggested that it is unlikely to be effective, and has proposed instead that the Victorian government scrap the current proposal and start again from scratch to ensure its effectiveness
There have also been reports of concerns within the cabinet about the suitability of the system, and a reluctance to proceed with the institution as currently outlined.
Unless these issues are clarified and resolved, Victoria risks having an anti-corruption regime that is forced to wait for low-level misconduct to fester and mutate into more serious corruption before it can be addressed. Without sufficient attention to the roots, the weeds of corruption in Victoria will continue to grow.