tag:theconversation.com,2011:/global/topics/ibac-6808/articlesIBAC – The Conversation2023-04-20T07:36:10Ztag:theconversation.com,2011:article/2041912023-04-20T07:36:10Z2023-04-20T07:36:10ZThe rise of unaccountable ministerial advisors: why Victoria’s IBAC report should concern all Australians<p>This week, Victoria’s Independent Broad-Based Anti-corruption Commission (known as IBAC) <a href="https://www.theguardian.com/australia-news/2023/apr/19/victoria-ibac-ministerial-adviser-union-contract">issued a finding</a> of “improper influence” on a public contract issued by the Victorian government in 2018.</p>
<p>IBAC did not find any “corrupt conduct” under the IBAC Act and no minister was directly involved.</p>
<p>On this basis, it might be possible to dismiss this report as the regrettable result of a complex governmental apparatus. After all, this was a small contract in the grand scheme of Victorian state spending, and you might think the news cycle should move on to focus on more important issues.</p>
<p>But this report should not be ignored. It casts important light on a growing threat to Australian parliamentary democracy: the exercise of public power by unaccountable ministerial advisors.</p>
<h2>Operation Daintree</h2>
<p>The <a href="https://www.ibac.vic.gov.au/publications-and-resources/article/operation-daintree-special-report">Operation Daintree report</a> investigated a $1.2 million contract between the Victorian health department and the Health Education Federation (HEF) to provide occupational violence and aggression training to health workers. The contract was signed in the hours before Victoria’s government went into caretaker mode prior to the 2018 election (the government can’t sign contracts in caretaker mode).</p>
<p>Despite having no relevant experience in this kind of training, HEF received this contract without a competitive tender process.</p>
<p>IBAC found two ministerial advisors “improperly influenced” this contract. These advisors – who are employed by the premier under Victorian law – put pressure on key public servants to award the contract to HEF.</p>
<p>Former Health Minister Jenny Mikakos <a href="https://www.theage.com.au/national/victoria/daintree-exposes-fundamental-weakness-in-how-victoria-is-governed-20230419-p5d1ko.html">described</a> this pressure as a reflection of the interest of the “premier’s office” in “accommodat[ing] any union concerns”.</p>
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<h2>A threat to responsible government</h2>
<p>Australian democracy is built on the concept of “responsible government” in which parliament holds governmental ministers to account through lawmaking and oversight. Although parliament doesn’t actually prosecute governmental misconduct, its role as overseer generates crucial information and publicity that holds these governmental ministers politically accountable.</p>
<p>Operation Daintree details an emerging gap in this traditional form of democratic oversight and accountability: the rise of powerful ministerial advisors. </p>
<p>Ministerial advisors are more powerful than ever at all levels of Australian government. For instance, former prime minister Tony Abbott’s chief of staff, Peta Credlin, was widely regarded as one of the powerful players in the federal government at the time. One Liberal Party insider <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/Papers_on_Parliament_68/Between_Law_and_Convention_Ministerial_Advisers_in_the_Australian_System_of_Responsible_Government">said of her</a>: “She’s tough, she’s a player, she makes demands, she gives directions, she bawls people out.” </p>
<p>While these advisors play an increasingly powerful role in governance, they tend to operate in the shadows. In contrast to the rigorous standards of independence for public servants, ministerial advisors are political appointees who are largely accountable only to their minister. For instance, advisors are generally thought to be <a href="http://classic.austlii.edu.au/au/journals/UTasLawRw/2016/5.html">immune from testifying to parliament</a>. </p>
<p>In this position, they can <a href="https://grattan.edu.au/wp-content/uploads/2021/07/Gridlock-Grattan-Report.pdf">operate</a> in a way they think the minister would support, while providing plausible deniability to that same minister. </p>
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<a href="https://theconversation.com/sports-rorts-shows-the-government-misunderstands-the-public-service-130796">'Sports rorts' shows the government misunderstands the public service</a>
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<p>This problem isn’t unique to Victoria. It also emerged in the so-called “<a href="https://www.abc.net.au/news/2022-11-08/bridget-mckenzie-gaetjens-report-sports-grants/101627502">sports rorts</a>” scandal under former prime minister Scott Morrison. </p>
<p>In that case, Commonwealth grants were awarded to sports clubs in important constituencies in the upcoming election. The relevant minister, Bridget McKenzie, sought to <a href="https://theconversation.com/sports-rorts-shows-the-government-misunderstands-the-public-service-130796">deflect blame</a> for this allocation of money onto unnamed advisors. </p>
<p>Associate Professor Yee-Fui Ng at Monash University describes their rise broadly as <a href="https://www.routledge.com/The-Rise-of-Political-Advisors-in-the-Westminster-System/Ng/p/book/9781032095561">contributing</a> to the “erosion” of ministerial responsibility. </p>
<h2>Injecting accountability back into the system</h2>
<p>How can we address this increasing problem of unaccountable ministerial advisors? </p>
<p>One option is expanding the Ministerial Staff Code of Conduct to cover more of their activities. This would go some way to bringing them out of the shadows.</p>
<p>But another vital reform is to shine more light on advisors. Parliament must hold ministers – including the prime minister or premier – responsible for the actions of their advisors. This should happen through an independent parliamentary committee that has the explicit legal authority to call both ministers and their advisors to answer for their actions.</p>
<p>IBAC hints at this very solution in the report. In the report, IBAC says the Victorian parliament may hold the premier “personally responsible” for “the conduct of his staff and its consequences, where he was aware of their actions or ought reasonably to have been aware of them”.</p>
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Read more:
<a href="https://theconversation.com/will-the-national-anti-corruption-commission-actually-stamp-out-corruption-in-government-191759">Will the National Anti-Corruption Commission actually stamp out corruption in government?</a>
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<p>The obvious institution to do this would be an independent Parliamentary Ethics Committee, which IBAC and the ombudsman called for in the <a href="https://www.ibac.vic.gov.au/docs/default-source/special-reports/recommendations---operation-watts-special-report---july-2022.pdf?sfvrsn=123e1e5f_6">Operation Watts report</a> in 2022. </p>
<p>This committee should have the power to call witnesses and further investigate unethical conduct that does not meet the definition of corrupt conduct. This kind of parliamentary inquiry would shine important light on bad governance and serve as a powerful deterrent for further actions like this.</p>
<p>This solution carries broader lessons, too. It suggests that improving governmental integrity – particularly the kind of so-called “<a href="https://www.abc.net.au/news/2023-04-20/victoria-ibac-corruption-report-labor-daniel-andrews-government/102242862">grey corruption</a>” at issue here – isn’t just the business of anti-corruption bodies. It also must be the business of parliament. </p>
<p>Independent committee scrutiny of unethical behaviour is just one example of parliamentary involvement. It could also include stronger legal requirements that ministers (including the premier or prime minister) respond openly to questions from parliament.</p>
<p>Overall, these reforms are critical in ensuring parliament is restored as the <a href="https://pursuit.unimelb.edu.au/articles/rebuilding-victoria-s-forgotten-integrity-institution">original integrity institution</a> in Australian parliamentary democracy.</p><img src="https://counter.theconversation.com/content/204191/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William Partlett does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The report casts important light on a growing threat to Australian parliamentary democracy: the exercise of public power by unaccountable ministerial advisors.William Partlett, Associate Professor, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1702042021-10-19T01:20:33Z2021-10-19T01:20:33ZAlbanese asks finance department whether Byrne breached official rules over staff<p>Anthony Albanese has referred Labor MP Anthony Byrne to the finance department to investigate his employment of taxpayer-funded staff who didn’t turn up to his office.</p>
<p>Albanese said he had first spoken to Byrne about whether he would refer himself to the department over the staff, who were taken on at the behest of a factional boss.</p>
<p>But Byrne said he had legal advice it was not appropriate, because of the undertakings he had give the Victorian Independent Broad-based Anti-Corruption Commission.</p>
<p>“Therefore I referred Mr Byrne,” Albanese said.</p>
<p>At IBAC last week the Labor MP, who has held the Victorian federal seat of Holt since 1999, admitted to engaging in branch stacking and to agreeing to engage two staffers at the request of then factional powerbroker Adem Somyurek. The men didn’t even appear in the office.</p>
<p>Asked whether the two were doing factional work when on his staff Byrne said, “I presume so”, although he had no direct knowledge. “I just didn’t know what they were doing.”</p>
<p>When it was put to him that “between you and Mr Somyurek you were in effect consuming taxpayer funds inappropriately”, Byrne replied “yes”.</p>
<p>He also gave evidence about regular staff in his office doing factional work.</p>
<p>Byrne was a long time ally of Somyurek, but after they fell out he became a whistle blower.</p>
<p>The resulting exposure of the branch-stacking scandal has led to the fall of four Victorian government ministers including Somyurek, who is out of the party and sits on the crossbench.</p>
<p>IBAC is holding public hearings “into allegations of serious corrupt conduct involving Victorian public officers”, including MPs. </p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-anthony-albanese-needed-to-walk-the-talk-on-labor-integrity-issue-169957">Grattan on Friday: Anthony Albanese needed to walk the talk on Labor integrity issue</a>
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<p>These are part of a coordinated investigation between IBAC and the Victorian Ombudsman, looking at matters including the allegations of branch stacking aired in the media last year, which included footage shot secretly in Byrne’s office. </p>
<p>Branch stacking is against ALP rules but not illegal. But the misuse of staff employed on taxpayer money can involve breaches of the law.</p>
<p>Last year federal minister Michael Sukkar and former minister Kevin Andrews were investigated by the finance department after allegations of the misuse of electorate officers to recruit Liberal party members to boost factional numbers.</p>
<p>They denied the allegations and were both cleared. The finance department said: “Further investigation of the matters within the scope of the review is not warranted as there is not a sufficient basis to form a view that there was serious misuses of Commonwealth resources”. </p>
<p>Albanese dodged questioning about whether Byrne will be Labor’s candidate at the election, but it seems increasingly unlikely he will be.</p>
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Read more:
<a href="https://theconversation.com/ibac-vs-icac-what-are-these-anti-corruption-commissions-and-how-do-they-compare-169544">IBAC vs ICAC: what are these anti-corruption commissions and how do they compare?</a>
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<p>“We’ll deal with those matters at the appropriate time,” Albanese said. “IBAC at the moment is still having hearings.”</p>
<p>Byrne has resigned his membership of the parliamentary intelligence and security committee and the privileges committee.</p>
<p>Albanese has been under increasing pressure to take a firm stand against him, especially given how strongly he spoke out against Sukkar.</p><img src="https://counter.theconversation.com/content/170204/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Labor MP Anthony Byrne to the finance department by Anthony Albanese to investigate his employment of taxpayer-funded staff who didn’t show upMichelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1700112021-10-15T01:01:09Z2021-10-15T01:01:09ZVIDEO: Michelle Grattan on high noon climate negotiations, and pressure on Albanese over MP Anthony Byrne<p>University of Canberra Professorial Fellow Michelle Grattan and University of Canberra Vice-Chancellor and President Professor Paddy Nixon discuss the week in politics.</p>
<p>This week they discuss Scott Morrison’s battle to get a deal with the Nationals, as Australia is under international pressure to deliver something meaningful for Glasgow. </p>
<p>They also canvass the sensational evidence given to the Victorian Broad-based Anti-corruption Commission on nefarious practices in the Victorian Labor Party. During the hearings, the MP for Holt, Anthony Byrne admitted to branch stacking, posing a dilemma for Anthony Albanese.</p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Michelle Grattan discusses the political week that was with Professor Paddy Nixon.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1699572021-10-14T10:59:27Z2021-10-14T10:59:27ZGrattan on Friday: Anthony Albanese needed to walk the talk on Labor integrity issue<p>Anthony Albanese has diminished his own, and Labor’s, credibility on integrity issues by declining to act immediately against MP Anthony Byrne, who this week admitted to participating extensively in branch stacking.</p>
<p>Byrne’s evidence to Victoria’s Independent Broad-based Anti-Corruption Commission was horrifying for anyone concerned with how our democracy works. The issues raised go far beyond the particular circumstances.</p>
<p>The IBAC investigation into branch stacking in Victorian Labor was triggered by Nine’s 2020 revelations about the activities of Adem Somyurek, at the time a factional power broker in a subgroup of the right and a minister in the Andrews government.</p>
<p>The average person might ask, what is “branch stacking” anyway? Isn’t it just one of those dark arts practised in all parties? Does it amount to much to be worried about?</p>
<p>“Branch stacking” comes in more than one variety.</p>
<p>For example, a political aspirant wanting to win a preselection ballot might go on a recruiting drive to sign up friends and supporters to join his or her party.</p>
<p>This is reasonable enough, provided the people pay their own memberships, understand what they are joining, and party rules specify a set time before they can vote (to stop a last-minute stack).</p>
<p>Some fringe religious groups organise “stacks”, which are more concerning, because of the potential influence on preselections and, indirectly, policy. Parties need to watch this, with rules about mass entries, although if the new members meet the proper requirements, little more can be done about it.</p>
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Read more:
<a href="https://theconversation.com/ibac-vs-icac-what-are-these-anti-corruption-commissions-and-how-do-they-compare-169544">IBAC vs ICAC: what are these anti-corruption commissions and how do they compare?</a>
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<p>The branch stacking in which Byrne engaged is the corrupt industrial-scale activity for which the Victorian ALP has been notorious over decades. It amounts to a chronic disease.</p>
<p>Byrne and others paid the membership fees of people (“stackees” are mostly from ethnic communities) who were just numbers for Somyurek and the faction, doing what they were told (or being chased up if they didn’t).</p>
<p>Byrne admitted he even agreed to employ a couple of staff who just undertook factional work, and indeed didn’t turn up in the office at all (despite being paid by the taxpayer).</p>
<p>There are deeply disturbing consequences of having a party “stacked” with what are, in essence, phoney members who hand over their party ballot papers to factional chiefs or blindly mark them as ordered.</p>
<p>It’s a means by which corrupt factional chiefs can control who gets elected to the party’s conferences and committees, and who gets preselection. The factional heavies can also potentially exercise malevolent power over MPs.</p>
<p>Byrne was aware of what was good, or potentially bad, for his political career. He went along with the staff arrangement because to do otherwise “would not have been healthy for my long-term future”, he said.</p>
<p>More broadly, the branch-stacking issue goes indirectly to how Labor chooses leaders.</p>
<p>The ALP rank and file have a 50% say in the election of the federal leader. But given that relatively few people (and many of them zealots) want to join political parties and the perennial difficulty of preventing branch stacking, the wisdom of according party members this degree of power – in the name of “democracy” – may be questionable.</p>
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Read more:
<a href="https://theconversation.com/a-federal-icac-must-end-the-confusion-between-integrity-questions-and-corruption-169360">A federal ICAC must end the confusion between integrity questions and corruption</a>
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<p>Factions have become endemic in modern parties. Their presence is not all bad. Indeed, they can sometimes be useful for getting positive things done (as they were during the Hawke government).</p>
<p>But they have become too stifling, even when their wranglers are perfectly respectable. They narrow the gene pool of parliamentary candidates, leading to former political staffers and the like being over-represented in parliament, and the tight control they exercise puts off many people who’d make good MPs.</p>
<p>When faction chiefs are corrupt, with their power built on corrupt practices and the ability to press MPs, by implied threats, into participating in such activities as branch stacking, the parliamentary system is debased.</p>
<p>The position of Byrne, who has been in federal parliament since 1999, is complicated, given he’s admitted to misbehaviour but also called it out publicly.</p>
<p>Byrne has never been a high flyer but has won respect, including from the Liberals, for his measured role on the parliamentary committee on intelligence and security. On Thursday he resigned from that committee, of which he was deputy chair.</p>
<p>Within the factional play in Victorian Labor, he was hand-in-glove with Somyurek for many years – even if, as he indicated, he felt uncomfortable and somewhat compromised – until they fell out in recent times and he turned whistle blower.</p>
<p>Footage shot in his office led to the expose by Nine. After Byrne’s IBAC evidence this week Commissioner Robert Redlich commended him for the assistance he’d given the commission.</p>
<p>Byrne had, Redlich said, provided a great deal of evidence “against your interests. You have acknowledged wrongdoing, you have acknowledged breaches of a range of party rules.”</p>
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Read more:
<a href="https://theconversation.com/where-is-federal-labor-headed-under-anthony-albanese-and-will-it-win-an-election-169243">Where is federal Labor headed under Anthony Albanese? (And will it win an election?)</a>
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<p>As whistle blower, it might be argued Byrne should not pay a penalty. But allowing that latitude would send the wrong message – to the Labor Party, MPs and the public. The correct message is that a member of parliament, and anyone who aspires to parliament, should stand up to corrupt pressures from the get-go.</p>
<p>Albanese is campaigning relentlessly against the government on a range of integrity issues. He’s attacked Liberal branch stacking. For him not to act decisively against Byrne smacks of double standards and a failure of leadership.</p>
<p>He has played for time in the Byrne affair, although he has shortened the time frame. Initially he said he wouldn’t pre-empt the IBAC processes. On Thursday he said “we’ll wait while the hearings are going on”. </p>
<p>Albanese has also pointed to what he did when the Somyurek scandal broke into public view. After the initial revelations, he (and Premier Dan Andrews) secured federal intervention in the Victorian ALP. Administrators are still in place and federal candidates – including Byrne – have been endorsed under this arrangement.</p>
<p>But Albanese’s arguments don’t cut it as a defence for his reluctance to act immediately on Byrne.</p>
<p>It’s no good his saying he has moved against corruption in Victoria if the subsequent, presumably clean, process has re-endorsed an MP with Byrne’s self-admitted record of misbehaviour.</p>
<p>It’s also unacceptable – and politically counterproductive – for Albanese to delay his judgment on Byrne. The MP’s confessions were cut and dried.</p>
<p>After this week’s evidence Albanese should have had Byrne’s endorsement for the 2022 election withdrawn. Indeed, he should have gone further and insisted he go to the crossbench.</p>
<p>The signals suggest Byrne will at some stage declare he won’t run for another term. He said in evidence he’d previously thought of retiring last time round but was prevailed on to stay.</p>
<p>If Byrne announces his retirement, or Albanese finally takes some stand, it will be too late for the Labor leader to claim moral authority. Time will have watered down the message.</p><img src="https://counter.theconversation.com/content/169957/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Albanese’s failure to act against Labor MP Anthony Byrne smacks of double standards on integrityMichelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1695442021-10-11T04:06:04Z2021-10-11T04:06:04ZIBAC vs ICAC: what are these anti-corruption commissions and how do they compare?<figure><img src="https://images.theconversation.com/files/425624/original/file-20211011-15-b9d699.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">James Ross/AAP</span></span></figcaption></figure><p>Today Victoria’s anti-corruption commission <a href="https://thenewdaily.com.au/news/state/vic/2021/10/11/anthony-byrne-victoria-ibac/">begins public hearings</a> into allegations of <a href="https://www.theguardian.com/australia-news/2021/oct/06/daniel-andrews-wont-stand-down-over-reports-ibac-is-investigating-his-role-in-firies-dispute">branch stacking</a> by Labor MPs and their staff.</p>
<p>This follows news Victorian Premier Daniel Andrews is being <a href="https://www.theguardian.com/australia-news/2021/oct/06/daniel-andrews-wont-stand-down-over-reports-ibac-is-investigating-his-role-in-firies-dispute">questioned</a> by the Victorian Independent Broad‑based Anti‑corruption Commission (IBAC) over his dealings with the firefighters union (Andrews says he has behaved “appropriately”). </p>
<p>It also comes as New South Wales Premier Gladys Berejiklian sensationally <a href="https://www.abc.net.au/news/2021-10-01/nsw-premier-gladys-berejiklian-resignation-icac-explained/100507412">fell on her sword</a> last month. She resigned after revelations the NSW Independent Commission Against Corruption (ICAC) was investigating whether there was a conflict between her public duties and private interests, which she denies. </p>
<p>This has all further heated up the debate about the <a href="https://theconversation.com/explainer-what-is-the-proposed-commonwealth-integrity-commission-and-how-would-it-work-140734">proposed federal integrity commission</a>. The Morrison government is expected to introduce legislation establishing the Commonwealth commission by the end of the year. But its proposed model has been criticised as being <a href="https://theconversation.com/the-proposed-national-integrity-commission-is-a-watered-down-version-of-a-federal-icac-108753">too weak</a>.</p>
<p>So, what are these anti-corruption commissions? And what are differences between ICAC in NSW and IBAC in Victoria?</p>
<h2>What are anti-corruption commissions?</h2>
<p>Anti-corruption commissions investigate corruption in government. They can be given strong coercive powers to do so, including the power to compel documents and witnesses.</p>
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<img alt="Former NSW premier Gladys Berejiklian" src="https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/425623/original/file-20211011-25-3pdac8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Former NSW Premier Gladys Berejiklian quit her role last month, in the face of an ICAC investigation.</span>
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<p>ICAC was established in NSW in 1988 by then premier Nick Greiner. A few years later, Greiner became the first premier to <a href="https://www.theguardian.com/australia-news/2021/oct/02/watchdog-with-bite-icac-claims-another-scalp-with-demise-of-gladys-berejiklian">resign</a> due to an ICAC investigation. Victoria’s IBAC was set up in 2012 following an election commitment by the Baillieu Coalition government (who made the pledge during opposition). </p>
<p>There are three main differences between IBAC and ICAC – jurisdiction, power and procedures. </p>
<h2>IBAC vs ICAC</h2>
<p>When IBAC was set up, it was <a href="https://www.accountabilityrt.org/wp-content/uploads/2012/11/IBAC-attachement-commitment-letter-July-2012-A.pdf">criticised</a> by prominent former judges at the Accountability Roundtable as a “toothless tiger,” given the high threshold of what it could investigate – it must be “serious corrupt conduct” before an investigation can start. </p>
<p>We should note here, the investigation threshold for the proposed Commonwealth Integrity Commission is even higher, requiring a reasonable suspicion of corruption amounting to a criminal offence before an inquiry can even begin. This is a difficult hurdle to clear.</p>
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Read more:
<a href="https://theconversation.com/a-federal-icac-must-end-the-confusion-between-integrity-questions-and-corruption-169360">A federal ICAC must end the confusion between integrity questions and corruption</a>
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<p>The Andrews government <a href="https://www.theage.com.au/opinion/victorias-anticorruption-commission-ibac-will-still-be-a-toothless-tiger-20160121-gmay8c.html">increased</a> the jurisdiction of IBAC in 2016, removing the requirement for corrupt conduct to be “serious”, and adding the ability to investigate misconduct in public office.</p>
<p>But IBAC’s jurisdiction remains <a href="https://australiainstitute.org.au/wp-content/uploads/2020/12/Briefing-paper-IBAC-Stephen-Charles.pdf">more limited</a> than ICAC’s, which has broad powers to investigate any allegation upon suspicion of corruption. This includes alleged substantial breaches of the ministerial and MP codes of conduct. </p>
<p>IBAC’s powers are also <a href="https://www.theage.com.au/national/victoria/changes-to-victorias-anticorruption-commission-way-short-say-original-ibac-advisers-20141010-1149t5.html">more limited</a> than ICAC. It is unable to use coercive powers to conduct preliminary investigations to determine whether matters warrant full examination. By contrast, ICAC has the full use of coercive powers, including for preliminary investigations. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/as-a-nsw-premier-falls-and-sa-guts-its-anti-corruption-commission-what-are-the-lessons-for-integrity-bodies-in-australia-168932">As a NSW premier falls and SA guts its anti-corruption commission, what are the lessons for integrity bodies in Australia?</a>
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<p>Finally, ICAC holds <a href="https://www.smh.com.au/national/nsw/a-crime-of-the-powerful-what-are-australia-s-anti-corruption-bodies-20191002-p52wv0.html">public hearings</a> as a matter of course. But IBAC can only hold public hearings in exceptional circumstances and when it is in the public interest to do so. </p>
<p>In short, ICAC is a more powerful commission than IBAC. </p>
<h2>Who watches the watchdogs?</h2>
<p>A big question is about how we ensure anti-corruption commissions do not overstep their bounds. Given their broad coercive powers, how do we hold them to account? </p>
<p>In Australia, anti-corruption commissions are subject to a strong system of accountability through parliaments and the courts. </p>
<figure class="align-center ">
<img alt="Victorian Premier Daniel Andrews." src="https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/425625/original/file-20211011-19-1lve9nu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Daniel Andrews says he will not stand down over news IBAC is looking at his dealings with the firefighters union.</span>
<span class="attribution"><span class="source">James Ross/AAP</span></span>
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<p>IBAC and ICAC report to dedicated parliamentary committees who scrutinise their actions and decisions. Complaints against IBAC and ICAC can be made to a dedicated inspectorate – an independent statutory officer who oversees their actions. </p>
<p>Where the anti-corruption commissions go beyond the legal boundaries of their roles, the courts will police it. For example, in 2015, the High Court shut down an investigation against crown prosecutor, Margaret Cunneen. The court <a href="https://www.theguardian.com/australia-news/2015/apr/15/icac-loses-appeal-to-investigate-margaret-cunneen">found ICAC</a> had no power to investigate allegations Cunneen had advised her son’s girlfriend to fake chest pains to avoid a breath test after a car crash. This is because Cunneen’s actions occurred when acting as a private citizen (not as crown prosecutor) – and so did not fit the definition of “corrupt conduct” in the NSW legislation.</p>
<p>So the idea that anti-corruption commissions are <a href="https://www.theaustralian.com.au/commentary/letters/icac-a-star-chamber-without-the-safeguards-of-the-common-law/news-story/3fe31424c4a92f964f0be8ba5cfdec1f">not accountable</a> is simply untrue. </p>
<h2>Under attack</h2>
<p>Anti-corruption commissions like IBAC and ICAC tend to be unpopular within governments because they scrutinise government action and may expose improper conduct or corruption within their ranks. </p>
<p>It is regrettably common for governments hostile to anti-corruption commissions to attack them, including by reducing their <a href="https://www.abc.net.au/news/2021-09-23/sa-icac-bill-passes-parliament/100487668?fbclid=IwAR3D497lgrhmMF9hJLCATkcawL9HHA8TlyhX1LZskmkQkgcJ5zNNG25USCg">powers</a> or <a href="https://www.theguardian.com/australia-news/2021/mar/25/former-corruption-commissioner-blasts-nsw-cuts-to-integrity-agencies-as-alarming">funding</a>.</p>
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Read more:
<a href="https://theconversation.com/icac-is-not-a-curse-and-probity-in-government-matters-the-australian-media-would-do-well-to-remember-that-169132">ICAC is not a curse, and probity in government matters. The Australian media would do well to remember that</a>
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<p>In this vein, the latest barrage of <a href="https://www.theguardian.com/australia-news/2021/oct/04/barnaby-joyce-condemns-spanish-inquisition-icac-saying-it-makes-mps-terrified-to-do-their-job#">criticisms</a> by politicians of ICAC following Berejiklian’s resignation is rather predictable. It is part of a broader pattern of attacks on oversight bodies that police government action. </p>
<p>This is despite their integral role in our democracy. Alongside other oversight bodies such as the ombudsman and auditor-general, anti-corruption commissions form part of an intricate, interlocking integrity framework that monitors executive action. </p>
<p>In this light, the design of the proposed Commonwealth Integrity Commission is fundamental. Australians deserve a robust system of accountability that will keep our politicians honest.</p><img src="https://counter.theconversation.com/content/169544/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yee-Fui Ng does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There are three main differences between IBAC and ICAC, the Victorian and NSW bodies set up to combat government corruption.Yee-Fui Ng, Associate Professor, Faculty of Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1013812018-09-13T00:54:15Z2018-09-13T00:54:15ZNew body for complaints against police in Victoria is a good move, with some caveats<figure><img src="https://images.theconversation.com/files/236118/original/file-20180912-133877-1kd02oh.jpg?ixlib=rb-1.1.0&rect=12%2C0%2C2694%2C1469&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Victorian parliamentary committee has recommended that all serious police misconduct be investigated by a new independent police misconduct and corruption division within the IBAC.</span> <span class="attribution"><span class="source">AAP/Tracey Nearmy</span></span></figcaption></figure><p>A <a href="https://www.parliament.vic.gov.au/ibacc/inquiries/article/3802">parliamentary committee</a> has recommended that all serious police misconduct be investigated by a new independent police misconduct and corruption division within the <a href="https://www.ibac.vic.gov.au/">Independent Broad-based Anti-Corruption Commission (IBAC)</a>. Will this deliver accountable policing for Victorians?</p>
<h2>A system lacking independent oversight</h2>
<p>Ever since the abolition of the Police Complaints Authority in 1988, Victoria Police investigate the majority of complaints against police officers internally. The present system has little public support. Going by <a href="https://www.parliament.vic.gov.au/ibacc/inquiries/article/3800">submissions</a> to the IBAC Committee Inquiry, only Victoria Police, the Police Association and IBAC itself support the status quo.</p>
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Read more:
<a href="https://theconversation.com/when-it-comes-to-violent-brawls-does-victoria-need-more-force-102642">When it comes to violent brawls, does Victoria need more 'force'?</a>
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<p>The statistics behind police investigating police aren’t good. Less than <a href="http://www.policeaccountability.org.au/wp-content/uploads/2015/11/CLCpaper_final.pdf">4% of complaints</a> relating to excessive force are substantiated (which means the alleged conduct is found on the balance of probabilities to have occurred). While 2% of complaints submitted through lawyers are substantiated, less than 1% of complaints involving <a href="https://www.parliament.vic.gov.au/images/stories/committees/IBACC/Submissions/police_oversight_submissions/Submission_46_Victorian_Aboriginal_Legal_Service.pdf">Aboriginal people</a> are.<br>
In contrast, <a href="https://www.parliament.vic.gov.au/images/stories/committees/IBACC/Submissions/Submission_44A_Robinson_Gill_Lawyers.pdf">civil litigation</a> and <a href="http://www.policeaccountability.org.au/wp-content/uploads/2015/11/CLCpaper_final.pdf">criminal defence</a> cases routinely produce results that contradict internal police investigations. As the complaint system is the gateway to criminal and disciplinary outcomes, its failure leaves the public vulnerable to further abuse. </p>
<h2>What is a fair and effective police complaints system?</h2>
<p>The numerous examples of independent agencies that investigate complaints against police rebut assertions that the police need to investigate their own. The Police Ombudsman of Northern Ireland (PONI), the Civilian Complaints Review Board of New York (CCRB) – <a href="http://www.policeaccountability.org.au/wp-content/uploads/2017/09/Policy-Briefing-Paper-2017_online.pdf">the list goes on</a>. These bodies are not only independent, but also more effective than Victoria Police investigations. The PONI substantiates 22% of complaints it investigates, while CCRB substantiates 23%.</p>
<p>As well as independence and effectiveness, allegations of human rights abuses by police and police “duty failures” require careful consideration of the interests of the victim. Because human rights violations by police or failure to respond adequately to victims of crime shatters a person’s confidence in the rule of law, justice requires victim-centred investigation of that abuse.</p>
<p>International <a href="https://rm.coe.int/opinion-of-the-commissioner-for-human-rights-thomas-hammarberg-concern/16806daa54">human rights principles</a> for police investigations are set out by the European Court of Human Rights. These require investigations of police complaints to be:</p>
<ol>
<li> Independent</li>
<li> Effective</li>
<li> Prompt</li>
<li> Transparent </li>
<li> Victim-centred</li>
</ol>
<h2>How do the inquiry recommendations stack up?</h2>
<p>While recommendations to establish and adequately resource an independent division within IBAC to investigate police complaints are important steps forward, we are concerned about the definition of “serious police misconduct” proposed as the threshold for mandatory IBAC investigation.</p>
<p>“Serious police misconduct” is defined as conduct that could result in the prosecution of an officer for a serious indictable offence or serious disciplinary action. This will exclude from IBAC investigation many complaints about racial profiling, excessive force or duty failures in family violence investigation.</p>
<p>In addition, the inquiry has recommended that IBAC complaint investigation files continue to be denied to complainants. This is contrary to the decision of the UN Human Rights Committee in <a href="https://monash.rl.talis.com/items/5792147C-02F6-B4CE-1324-8510ECCB6E70.html">Horvath v Australia</a> where the state’s failure to provide Horvath with her complaint file was one of the reasons Australia was found to be in breach of its human rights obligations. In contrast, the Independent Officer for Police Conduct in the UK is subject to <a href="https://www.policeconduct.gov.uk/who-we-are/accountability-and-performance/requesting-information-us">FOI laws</a>. </p>
<p>We are also concerned by recommendation 26, which aims to ensure IBAC decisions are protected from judicial review. The right of appeal is fundamental to ensuring compliance with the law and natural justice. </p>
<h2>Will the IBACC inquiry deliver for all Victorians?</h2>
<p>Marginalised groups are the most likely to experience abuse at the hands of police, and yet their efforts to seek redress may be the least likely to succeed. The figures quoted above in relation to Aboriginal complainants in Victoria reflect this double disadvantage.</p>
<p>A complaints system in which police investigate themselves is hardly likely to instil confidence in communities where police are regarded as the problem rather than the solution.</p>
<p>In <a href="https://arts.monash.edu/social-sciences/border-crossing-observatory/globalisation-policing-internal-borders/">our research</a> in Melbourne, young people from culturally diverse backgrounds <a href="https://www.parliament.vic.gov.au/images/Submission_32_Weber_and_McCulloch_Monash_Social_Sciences.pdf">reported</a> a wide range of problematic encounters with police. Many parents feared their children would experience mistreatment or criminalisation by police.</p>
<p>An independent system offering timely redress for police wrongdoing and protection from reprisals could go a long way towards restoring community confidence. The inquiry has recommended that “complainant welfare managers” be appointed by both IBAC and Victoria Police to reduce the barriers faced by marginalised Victorians in particular. However, independent support by youth or community workers may still be required to enable them to lodge complaints in the first place.</p>
<h2>Victims of crime need accountable policing</h2>
<p>Victims of crime rely on police to behave professionally and exercise care when they seek assistance. Victorian coronial inquests into the deaths of <a href="http://www.coronerscourt.vic.gov.au/home/coroners+written+findings/finding+-+inquest+into+the+death+of+kelly+ann+thompson">Kelly Thompson</a> and <a href="http://www.coronerscourt.vic.gov.au/home/coroners+written+findings/findings+-+inquest+into+the+death+of+joy+maree+rowley">Joy Rowley</a>, both murdered at the hands of their estranged partners, make this clear.</p>
<p><hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victorian-government-should-be-wary-of-introducing-a-stand-alone-offence-of-non-fatal-strangulation-100517">Victorian government should be wary of introducing a stand-alone offence of non-fatal strangulation</a>
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<p>The Victorian coroner was critical in both cases of police failure to implement policies and procedures designed to protect people from family violence in the lead up to these killings. In the wake of the coronial findings, Rowley’s children <a href="https://www.theage.com.au/national/victoria/women-fear-russian-roulette-when-reporting-family-violence-20180803-p4zveo.html">said of the police response</a>:</p>
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<p>It’s like Russian roulette, sometimes you get someone who will help. Sometimes, like Mum, you get someone who doesn’t take you seriously.</p>
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<p>Our research on violence against <a href="https://www.anrows.org.au/women-disability-and-violence-creating-access-justice">women with disability</a> backs these comments. Many of the women we interviewed reported that police failed to respond to their complaints of violence against them. Compounding this duty failure, police would sometimes threaten to charge the woman experiencing violence if she persisted in complaining or if she expressed dissatisfaction with the police response.</p>
<p>An effective complaints system is needed if police are to be held accountable for duty failures. There is nothing in the committee’s recommendations that will improve accountability for “duty failures”. </p>
<p>Notwithstanding the shortcomings we have identified, the IBAC Inquiry offers a platform for reform that would entrench a human rights compliant and fully independent police complaints mechanism to serve all Victorians and support good policing practice. We will probably have to wait until after the upcoming state elections to learn whether the political will exists to deliver on this opportunity.</p><img src="https://counter.theconversation.com/content/101381/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tamar Hopkins is a member of the Flemington & Kensington Community Legal Centre, Police Accountability Project.</span></em></p><p class="fine-print"><em><span>Leanne Weber receives funding from an Australian Research Council Future Fellowship. </span></em></p><p class="fine-print"><em><span>Jude McCulloch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A complaints system in which police investigate themselves is hardly likely to instil confidence in communities where police are regarded as the problem rather than the solution.Tamar Hopkins, PhD student UNSW Law, UNSW SydneyJude McCulloch, Professor of Criminology, Monash UniversityLeanne Weber, ARC Future Fellow in Internal Border Policing, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/803212017-07-03T05:53:56Z2017-07-03T05:53:56ZWhy exploitation and corruption continue to dog Australia’s VET sector<p>Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) is currently <a href="http://www.ibac.vic.gov.au/investigating-corruption/public-examinations/operation-lansdowne">investigating</a> allegations of serious corruption at TAFE institutes. This is the latest in a series of scandals involving Australia’s vocational education and training (VET) sector.</p>
<p>IBAC’s <a href="http://www.ibac.vic.gov.au/investigating-corruption/public-examinations/operation-lansdowne">Operation Lansdowne</a> is probing how TAFEs have become embroiled in corrupt schemes that misappropriated millions of public dollars for training that never occurred. However, this sum is relatively minor compared to other reports from the sector. </p>
<p>In recent history, the VET sector has been beset with money loss, stranded students, and organisations collapsing. <a href="https://grattan.edu.au/wp-content/uploads/2015/02/234_norton_submission_vet_senate_inquiry1.pdf">Analysis</a> from the Grattan Institute estimates that 40% of the <a href="http://www.mitchellinstitute.org.au/wp-content/uploads/2016/03/VET_funding_in_Australia_Background_trends_and_future_directions.pdf">A$3.1 billion in loans</a> paid to training organisations through the federal VET-FEE HELP scheme are likely never to be repaid. </p>
<p>Additionally, the $650 million collapse of the training organisation <a href="http://www.smh.com.au/business/markets/pricewaterhousecoopers-accused-of-misleading-vocation-investors-20170329-gv8ywo.html">Vocation</a> is the subject of two separate class actions and numerous investigations, one of which involves a <a href="http://www.afr.com/brand/rear-window/vocations-john-dawkins-mark-hutchinson-file-defences-in-federal-court-20170403-gvcplu">former federal education minister</a>. </p>
<p>Reports of unethical practices have been widespread. <a href="http://www.smh.com.au/national/vocational-colleges-preying-on-retirees-in-trawl-for-government-cash-20150918-gjppgo.html">In one example</a>, nursing home residents signed up to what they thought was a free, four-day course on how to use Microsoft Word and email. Instead, the training organisation enrolled them in a technical course for IT professionals and received hundreds of thousands of dollars from the government. </p>
<h2>Why this is happening</h2>
<p>A <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/vocationaled/Final_Report">federal parliamentary inquiry</a> found poor regulation and inadequate oversight as major contributing factors to the ongoing issue of corruption in vocational training. However, there is a need to also consider the certification regime of Australia’s VET sector. </p>
<p>Certification regimes are how authorities ensure the outcomes of an education system is valuable to society. </p>
<p><a href="http://www.sciencedirect.com/science/article/pii/S0276562411000047">Research</a> shows that a proper functioning certification regime is critical to the validity and reliability of an education system. A certification regime can have a major effect on the cost of education and its ability to deliver <a href="https://en.wikipedia.org/wiki/Distributive_justice">distributive justice</a>. </p>
<p>The media’s use of words like “<a href="http://www.news.com.au/finance/economy/federal-budget/government-plans-to-overhaul-vocational-students-loans-system/news-story/0f5b647bd251bb178ac92b578b0a98ac">shonky</a>”, “<a href="http://www.theage.com.au/victoria/stop-the-rorts-30-million-crackdown-looms-for-vocational-sectors-dodgy-training-providers-20150919-gjqbuk.html">rorts</a>”, “<a href="http://www.abc.net.au/news/2015-06-29/victorian-government-launches-crackdown-on-dodgy-training/6580074">dodgy</a>” and “<a href="http://www.smh.com.au/comment/rorted-by-the-public-sector--the-vocational-education-lesson-20151202-gldi64.html">shysters</a>” are all indicative of a certification regime that is failing to establish trust in the integrity and validity of the education outcomes it produces.</p>
<h2>Understanding certification in Australia’s VET sector</h2>
<p>Australia’s VET sector is structured very differently from secondary and university education. It uses a competency-based system that emphasises outcomes.</p>
<p>This approach was introduced in the 1990s to make the VET system more flexible and responsive. Education inputs, such as the length of study, were viewed as a poor way of measuring the quality of education provision. The system was designed to focus on signalling the presence of knowledge and skills that can be used in the workplace. </p>
<p>In a competency-based system, education can be certified regardless of where it is delivered, how the program is taught, or what assessment is undertaken. This means someone studying for a diploma can take anywhere between one week and two years before receiving their certification. It can be legitimate to be awarded the diploma without submitting a single written assignment.</p>
<p>This is in contrast to a university bachelor degree, which takes a minimum of three years and the submission of assignments totalling tens of thousands of words.</p>
<p>To be an accredited training provider, it is also not mandatory to have a physical presence like a school or campus. This may help explain why one <a href="http://www.news.com.au/finance/work/careers/dodgy-college-gave-away-ipads-to-supercharge-exploitation-of-vulnerable-communities-court-finds/news-story/f1f48d6f1dbe76cd504fe75a82464df9">training company</a> claimed $57 million while operating out of a small office above Silly Willy’s $2 shop in Western Sydney.</p>
<h2>The promise of competition and devaluing the role of TAFEs</h2>
<p>Over the past decade, a series of funding reforms were introduced to the VET sector that stressed the value of competition. There has been significant criticism of these reforms. A <a href="http://www.education.vic.gov.au/Documents/training/providers/market/vtmrfull2015.pdf">review</a> completed for the Victorian government noted:</p>
<blockquote>
<p>There has been too much emphasis on increasing both the number of providers and the intensity of the competition between them, and not enough care taken in ensuring they are delivering quality training.</p>
</blockquote>
<p>The features of the market reforms, and the certification regime of the VET sector, meant organisations could set up with relatively little investment, provide training of dubious quality, and leave once they had made their money. </p>
<p>In any certification regime, institutions also play an important role in providing quality assurance. Under these reforms, however, TAFEs were particularly hard hit – and the IBAC investigations show just how <a href="http://www.abc.net.au/news/2017-06-29/ibac-ex-tafe-executive-denies-wrongdoing-over-alleged-$1.8m-scam/8664812">compromised</a> they became. </p>
<p>Faced with job losses, campus closures and plummeting revenue, the TAFEs were forced to consider riskier arrangements like the ones currently being scrutinised by IBAC.</p>
<h2>Rethinking the certification regime of the VET sector</h2>
<p>This is not the first time questions have been raised about the quality of training in the VET sector. Almost a decade ago <a href="https://www.themonthly.com.au/issue/2010/november/1288836088/margaret-simons/exodus">the exploitation of international students</a> was under the microscope. <a href="http://www.voced.edu.au/content/ngv%3A23882">Research</a> from Monash University questioned the VET sector’s ability to produce graduates that matched the competencies being certified.</p>
<p>The repeated scandals in the VET sector show that the certification regime of the VET sector can be vulnerable to unethical practices. <a href="https://theconversation.com/australias-vet-system-needs-fundamental-change-heres-how-it-can-be-fixed-47701">Suggestions</a> have been made on how to increase the sector’s resilience. These are good places to start when looking at how to improve the system.</p>
<p>In any year, <a href="https://www.ncver.edu.au/__data/assets/file/0024/9393/socioeconomic-disadvantage-2612.pdf">26%</a> of 15-to-24-year-olds from lower socioeconomic backgrounds train in the VET sector. It is important to have a system that operates in their interests. Students need to be offered courses that are of high quality and beneficial to them. Government and industry need to have confidence that what is being certified is real and valuable. </p>
<p>A certification regime is based on trust. We need better ways to trust the value and legitimacy of what is being certified in our VET sector.</p><img src="https://counter.theconversation.com/content/80321/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Hurley does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>VET certification standards differ greatly from university. Students qualify for diplomas with no set course length, assignments, or campus contact.Peter Hurley, Postgraduate President and PhD Candidate in Education, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/349812014-12-04T04:31:29Z2014-12-04T04:31:29ZPoliticians forget what public trust means – we must remind them<p>There cannot be a more important office or more challenging role than being a member of parliament. This is especially so for government MPs and ministers, including the newly elected Victorian ministry <a href="http://www.abc.net.au/news/2014-12-04/daniel-andrews-sworn-in-as-victorian-premier/5935934">sworn in on Thursday</a>. As former federal Liberal minister Fred Chaney <a href="http://www.accountabilityrt.org/inaugural-art-lecture-fred-chaney-integrity-parliament-where-does-duty-lie/">has explained</a>, all persons elected to parliament bring with them values, loyalties and obligations to self, family and other supporters, and their parties, but also obligations to people in their electorate and the state – not to mention personal political ambitions and the pursuit of power. Much of the time, two or more of them will be in conflict.</p>
<p>Cabinet ministers have to add to the mix their loyalty and confidentiality obligations. Chaney observed that most decisions of policy that MPs and cabinet ministers must make involve issues for which there are competing solutions, none perfect, which will affect members of the community differently. </p>
<p>Chaney advised that the guiding principle to resolve conflicts must be what is in the public interest.</p>
<h2>Public office is a public trust</h2>
<p>The oaths politicians take as MPs and ministers commit them to compliance with the law but give little guidance. Guidance from the law can be found in a principle of law and ethics, which states that public office is a public trust. Regrettably, that principle has been largely forgotten.</p>
<p>Victorian MPs and ministers are covered by two <a href="http://www.parliament.vic.gov.au/publications/fact-sheets/1021-fact-sheet-e2-members-code-of-conduct">codes of conduct</a>. However, these focus on specific issues of conflicts of interest between their personal financial interests and public duties and roles in parliament and government.</p>
<p>Guidance could be found in the current benchmark for codes, the <a href="http://www.dpmc.gov.au/guidelines/docs/ministerial_ethics.pdf">Commonwealth Standards of Ministerial Ethics</a>, initially published by former prime minister Kevin Rudd. The code begins by stating:</p>
<blockquote>
<p>1.1. The ethical standards required of Ministers in Australia’s system of government reflect the fact that, as holders of public office, Ministers are entrusted with considerable privilege and wide discretionary power.</p>
<p>1.2. In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility and the public interest, as required by these Standards.</p>
</blockquote>
<p>While expressly based on the public trust principle, it does not appear to have revived that principle in the consciousness of those in government or the community.</p>
<p>When we entrust people with power over our lives, that power should be exercised in our interests; that obligation must always prevail over the interests of the people given the power. This is what the law recognises as a fiduciary relationship. </p>
<p>It follows that when a minister is making a decision and the common good of the people requires one decision, but his or her personal or political loyalties and future require a different decision, he or she must always give priority to the common good.</p>
<h2>An ancient principle fallen into disrepair</h2>
<p>This is not a new principle. It goes back to Plato. </p>
<p>About 100 years ago, that proposition that “public office is a public trust” was regularly used in public discussion of government and parliamentarians’ actions. It is not a metaphor: it is a fundamental ethical principle and a principle of the common law of Australia.</p>
<p>Former High Court chief justice Sir Gerard Brennan <a href="http://www.accountabilityrt.org/integrity-awards/sir-gerard-brennan-presentation-of-accountability-round-table-integrity-awards-dec-2013/">explained</a>:</p>
<blockquote>
<p>It has long been an established legal principle that a member of Parliament holds ‘a fiduciary relation towards the public’ and ‘undertakes and has imposed upon him a public duty and a public trust’. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by, the interests of the trustee.</p>
</blockquote>
<p>Sir Gerard acknowledged that:</p>
<blockquote>
<p>… the fiduciary duties of political officers are often impossible to enforce judicially - the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty.</p>
</blockquote>
<p>Sir Gerard’s conclusion left little room for doubt about the obligations of public trust:</p>
<blockquote>
<p>Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry ‘whatever it takes’ is not consistent with the performance of fiduciary duty.</p>
</blockquote>
<p>The courts <a href="http://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf#page=17">have applied</a> the legal principle in other areas. These include legality of contracts, common law criminal offences and the sentencing of convicted offenders whose offence involved a breach of their public trust obligations. </p>
<p>The courts have also applied the principle when interpreting legislation that gives discretionary statutory powers to ministers. The courts have held that such powers are <a href="http://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf#page=31">“conferred as it were upon trusts”</a>. They are to be exercised in the public interest to promote and not defeat or frustrate the objects of the legislation. </p>
<p>Court action can be taken to challenge the exercise of such powers relying upon the legal principle that public office is a public trust. One example is the powers held by planning ministers <a href="http://www.accountabilityrt.org/government-secrecy-and-urban-planning-the-forgotten-trust-and-reform/">to intervene</a> in planning applications.</p>
<h2>Issue of integrity affects all policy</h2>
<p>In the area of open and accountable government our public trustees – both elected and appointed public servants – inevitably have to deal with a conflict of interest arising from their obligation to give priority to the public interest over their personal and political interests. This is an area of policy that affects how all other policy areas are addressed. </p>
<p>Open and accountable government is critical to the operation of our democracy. If provided, it would also result in better government for the whole community, reduce opportunities for corruption of government and significantly help economic growth. In late 2013, British Prime Minister David Cameron <a href="https://www.gov.uk/government/speeches/pm-speech-at-open-government-partnership-2013">said</a>:</p>
<blockquote>
<p>… the best way to ensure that an economy delivers long-term success, and that success is felt by all of its people, is to have it overseen by political institutions in which everyone can share. Where governments are the servants of the people, not the masters. Where close tabs are kept on the powerful and where the powerful are forced to act in the interests of the whole people, not a narrow clique.</p>
</blockquote>
<p>He acknowledged that transparency in government is not easy, that it “brings risks”. The risks are personal for our public trustees. Giving priority to the public interest by strengthening open and accountable government requires moral courage.</p>
<p>Probably the best-known recent failure in the government integrity system in Victoria has been the creation of the Independent Broad-based Anti-corruption Commission (<a href="https://theconversation.com/how-to-turn-ibac-into-a-corruption-watchdog-that-works-as-promised-34709">IBAC</a>). If the creators of IBAC had been more aware of their obligations as public trustees, would the outcome have been different? </p>
<p>Would they have dealt with the conflict of interest they faced by including the community in the decision-making process, publishing draft legislation for discussion and involving relevant civil society groups in their deliberations? Instead, they lacked, at every critical stage, the benefit of input from the key stakeholders – the people of Victoria.</p>
<h2>How do we all repair government?</h2>
<p>The new Labor government made election commitments to strengthen the state’s integrity system. While their <a href="http://www.accountabilityrt.org/wp-content/uploads/2014/10">proposals</a>, if carried out well, will make some important <a href="https://theconversation.com/its-hard-for-voters-to-trust-leaders-who-wont-promise-true-integrity-34710">incremental improvements</a>, much more could have been promised. For example, the government could replace our FOI legislation with the best-practice <a href="http://www.qld.gov.au/about/rights-accountability/right-to-information/">“Right to Know”</a> approach of Queensland and refer the <a href="http://www.theage.com.au/comment/political-donations-victorias-big-secret-20141014-115mgh.html">political funding</a> of parties and candidates to the Joint Electoral Matters Committee for inquiry.</p>
<p>Again, did a failure to properly consider the public trust principle contribute to the shortcomings of what has been promised? If so, that can be easily rectified.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/clb43hL_MA4?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>In his victory speech on election night, new Victorian premier spoke in terms that reflected the public trust principle when he identified two key objectives of his new government: serving the people and winning back their trust.</p>
<p>The government can win back people’s trust by demonstrating that it is serious about strengthening Victoria’s integrity system by implementing Australian best practice. There is no better way to serve the people and regain their trust than bringing them into the decision-making process on all integrity-related issues.</p>
<p>To change the culture to one that accepts and gives primacy to the public trust principle, it needs to become an accepted part of public discussion and expectation. Where does responsibility for this lie? The short answer is with us all: members of the community; the teaching professions; governments; parliaments and the media. </p>
<p>Ultimately, however, the buck stops with those who vote every four years.
If we want our democracy to work as it should, we cannot afford to disengage from it. And if we continue our disengagement, we must accept ultimate responsibility for the failures of our democratic system.</p>
<p>Is there hope? The rise of these matters as a political issue in Victoria and at the national and international level suggest there is. Australia has made commitments under the UN Convention Against Corruption (<a href="https://www.unodc.org/unodc/en/treaties/CAC/">UNCAC</a>) and <a href="http://foi-privacy.blogspot.com.au/2014/11/g20-countries-to-lead-on-international.html#.VH_GimSUfC4">through the G20</a> and the <a href="http://www.opengovpartnership.org/">Open Government Partnership</a>.</p>
<p>And as Victor Hugo said:</p>
<blockquote>
<p>All the forces in the world are not so powerful as an idea whose time has come.</p>
</blockquote>
<p>The public trust principle’s time is here.</p>
<hr>
<p><em>Tim Smith QC was one of the authors of this article. He chairs the Accountability Round Table and is a former Supreme Court judge and former commissioner of the Australian Legal Reform Commission and Victorian Legal Reform Commission. More of his speeches and writing on this issue can be seen <a href="http://www.accountabilityrt.org/?s=office+public+trust">here</a>.</em></p><img src="https://counter.theconversation.com/content/34981/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Colleen Lewis has previously received funding from the Australian Research Council. She is a member of the Accountability Round Table.</span></em></p>There cannot be a more important office or more challenging role than being a member of parliament. This is especially so for government MPs and ministers, including the newly elected Victorian ministry…Colleen Lewis, Adjunct Professor, National Centre for Australian Studies, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/347092014-11-27T04:56:12Z2014-11-27T04:56:12ZHow to turn IBAC into a corruption watchdog that works as promised<p>Before the 2010 election, the opposition – now the government – <a href="http://www.abc.net.au/news/stories/2010/11/22/3072444.htm?site=melbourne">promised</a> Victorians an anti-corruption commission. This was to be closely modelled on the New South Wales Independent Commission Against Corruption (ICAC). Instead Victorians got <a href="http://www.ibac.vic.gov.au/">IBAC</a>, the Independent Broad-based Anti-Corruption Commission.</p>
<p>The <a href="http://www.ibac.vic.gov.au/about-ibac/key-legislation-and-regulatory-framework/legislation">IBAC legislation</a> has a very narrow definition of corrupt conduct. It excludes the offence of misconduct in public office. IBAC’s jurisdiction is further limited by the very narrowly defined phrase “being conduct that would, if the facts were found proven beyond reasonable doubt at a trial, constitute a relevant offence”. </p>
<p>In contrast, the <a href="http://www.icac.nsw.gov.au/">NSW ICAC</a> has very broad powers to start an investigation. “Corrupt conduct” is defined in such a way as to include any activity that could adversely affect directly or indirectly the exercise of official functions by a public official. It covers a broad variety of other offences. </p>
<p>ICAC’s jurisdiction is so widely expressed that it can investigate any allegation that in the Commissioner’s opinion implies that corrupt conduct may be occurring, or about to occur. The power to investigate is virtually unlimited. ICAC is entitled to use its broad powers at any stage of an investigation.</p>
<p>Since 2011, in a departure from its position in government, the Labor opposition has not suggested that Victoria does not need or should not have such an anti-corruption commission.</p>
<p>Victoria’s IBAC cannot investigate, however, unless it is satisfied that the conduct is serious corrupt conduct. It cannot use its full coercive powers during preliminary investigations.</p>
<h2>Key steps towards making IBAC effective</h2>
<p>To make the IBAC an effective anti-corruption commission:</p>
<ul>
<li><p>the definition of “corrupt conduct” should be greatly broadened</p></li>
<li><p>the limitation to “facts which if proved beyond reasonable doubt at a trial would constitute a relevant offence” should be removed;</p></li>
<li><p>the offence of misconduct in public office should be included;</p></li>
<li><p>IBAC’s entitlement to investigate should be broadened and the threshold lowered;</p></li>
<li><p>IBAC should be entitled to use its broad powers from the outset of any investigation.</p></li>
</ul>
<h2>What the government has offered</h2>
<p>The present Coalition government <a href="http://www.accountabilityrt.org/wp-content/uploads/2014/10/Clark-141116-ART-re-integrity-legislation-2.pdf">proposes to amend</a> the legislation as follows:</p>
<ul>
<li><p>to include the offence of misconduct in public office;</p></li>
<li><p>to permit IBAC to conduct preliminary investigations to determine whether to investigate a matter under the Act;</p></li>
<li><p>to conduct a preliminary inquiry, it will no longer be necessary for IBAC to articulate a state of facts that, if found proved beyond reasonable doubt at a trial, would constitute a relevant offence;</p></li>
<li><p>IBAC is, however, not entitled to use its broad powers during a preliminary investigation.</p></li>
</ul>
<p>A significant advance is the inclusion of misconduct in public office in the definition of either corrupt conduct or “relevant offence”. An amendment that formally authorises IBAC to make preliminary investigations is desirable, but of little real consequence. IBAC already acts on the assumption that it has this right.</p>
<p>The legislation will remain seriously defective in not permitting IBAC to use its coercive powers during preliminary investigations. Under the proposed amendments, so long as IBAC has no more than a suspicion that some unidentified corruption may be occurring, it will remain unable to use its coercive powers, since it will continue to be unable to identify facts that if found proved at a trial beyond reasonable doubt would amount to a relevant offence.</p>
<p>The government-proposed amendments will leave IBAC still inadequately armed to expose corruption and falling far short of the ICAC model. The narrow and constricted definition of corruption is wholly inappropriate to IBAC’s proper function. It will be unable to detect and expose hidden corruption unless authorised to use the full coercive powers of the legislation in preliminary investigations.</p>
<p>The thresholds in the <a href="http://www.ibac.vic.gov.au/docs/default-source/legislation/ibac-act-2011.pdf?sfvrsn=4">IBAC Act</a> prevent IBAC from conducting a full and proper investigation of any corruption unless it can articulate facts that, if found proved beyond reasonable doubt at a trial, would constitute a relevant offence. This threshold is completely inappropriate if IBAC is to have the ability to investigate corruption.</p>
<h2>Labor’s response also falls short</h2>
<p>In response, Labor <a href="https://www.viclabor.com.au/media-releases/labor-will-fix-napthines-toothless-ibac-tiger/">proposes</a> to lower the investigatory threshold to ensure that IBAC does not need to be satisfied (prima facie) of the existence of serious corrupt conduct before starting an investigation. </p>
<p>Labor proposes to include misconduct in public office in the list of relevant offences and to resolve jurisdictional issues between IBAC and other integrity bodies. It has also indicated a willingness to pass the Integrity Legislation Amendment Bill 2014, which the government had proposed but not brought forward for debate.</p>
<p>Labor’s proposals in opposition are no more satisfactory than those of the government. The legislation will still have a wholly inadequate definition of corrupt conduct. IBAC’s entitlement to investigate will not be broadened and there is no proposal to permit the use of its broad powers from the start of any investigation. Despite a vague mention of reducing the thresholds before an IBAC investigation can begin, no detail has been given.</p>
<p>Labor’s response to the inadequacies of the present legislation is vague and as unsatisfactory as that of the incumbent government. The Coalition can at least say that it established an anti-corruption commission.</p>
<h2>Greens offer to give IBAC teeth</h2>
<p>The Greens’ <a href="http://www.accountabilityrt.org/wp-content/uploads/2014/10/IBAC-Greens-issues-and-amdts-.pdf">response</a> is the most satisfactory. The Greens have broadly supported all of the Accountability Round Table’s proposed amendments. </p>
<p>The Greens indicated that the legislation should be amended to allow disclosures relating to members of Parliament to be made to IBAC. A separate body should be established to investigate police misconduct, including injury and death as a result of police contact. </p>
<p>The Greens say they will:</p>
<ul>
<li><p>broaden the definition of corrupt conduct along the lines of the ICAC Act;</p></li>
<li><p>remove the requirement that IBAC investigate only “serious” corrupt conduct; </p></li>
<li><p>not limit the definition of corrupt conduct to indictable offences;</p></li>
<li><p>provide IBAC with appropriate coercive powers to conduct effective preliminary investigations.</p></li>
</ul><img src="https://counter.theconversation.com/content/34709/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Charles is affiliated with the Accountability Round Table.</span></em></p>Before the 2010 election, the opposition – now the government – promised Victorians an anti-corruption commission. This was to be closely modelled on the New South Wales Independent Commission Against…Stephen Charles, Senior Teaching Fellow, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/347102014-11-27T02:38:21Z2014-11-27T02:38:21ZIt’s hard for voters to trust leaders who won’t promise true integrity<p>The Accountability Round Table (ART), a non-partisan organisation, <a href="http://www.accountabilityrt.org/wp-content/uploads/2014/09/ART-Victorian-Elections-2014-attachment-and-appendices.pdf">wrote</a> to the three major political parties two months ago seeking their position on three important arms of Victoria’s integrity system: Freedom of Information, the Independent Broad-Based Anti-Corruption Commission, and political donations. </p>
<p>While the <a href="http://www.accountabilityrt.org/art-seeks-accountability-committments-prior-to-victorian-state-elections-promises-so-far/">responses</a> promised to remedy shortcomings, in several areas they fall well short of <a href="http://www.accountabilityrt.org">what is required</a> to ensure transparent and accountable government. </p>
<p>One could be forgiven for thinking that successive governments imagine they are doing the community a favour if they agree to deliver, in an incremental fashion, modicums of accountability and transparency. Well, they aren’t, and voters are acutely aware of this.</p>
<p>We elect people to represent our interests, not their individual interests or the interests of their party machine. Our taxes pay the wages of our elected representatives and contribute, in part, to the bank accounts of political parties. We contribute to the latter because under Victoria’s <a href="http://www.theage.com.au/comment/political-donations-victorias-big-secret-20141014-115mgh.html">political funding rules</a>, taxpayers give A$1.20 (adjusted for inflation) for every first-preference vote a party receives. There is a 4% eligibility requirement.</p>
<p>If for no other reason (and there are others), paying taxes gives us the right to know not just about the decisions made in our name, but also the processes that led to those decisions. In exchange for taxes paid, we are asking for greater transparency and accountability on public sector matters. That includes government-business relations that involve the spending of taxpayers’ dollars.</p>
<h2>Secrecy leads to corruption</h2>
<p>We are asking this for a very simple reason: transparency and accountability matter. They matter to the ethical health of Victoria and every other state. They matter to the <a href="http://www.transparency.org/topic/detail/politics_and_government">functioning of our democracy</a>.</p>
<p>Transparency and accountability are the cornerstones of a democratic political system; they distinguish it from dictatorships and totalitarian regimes. They matter, too, for economic growth, which is needed to meet the social needs of Victorians.</p>
<p>And, of course, they matter to voters. Transparency and accountability lift the veils of secrecy that shroud many aspects of government and public sector decision-making. Unless the veils are lifted, voters cannot make an informed choice.</p>
<p>To return to the issue of economic growth, profit is not a dirty word. However, the means by which it is obtained can be dirty. Secrecy leads to corruption; it is a fertiliser for corrupt practices. Extensive <a href="http://corruptionresearchnetwork.org/rss/datasets">research</a> confirms the strong connection between secrecy and corruption.</p>
<p>To ensure that we don’t reach a point where unethical, even illegal, means are used to achieve ends that benefit the few and disadvantage the many, Victoria’s integrity regime needs to be strengthened. The refusal by successive governments to do this explains, in part, the fundamental lack of trust the community has in members of parliament, political parties and the political system.</p>
<p>We need to be able to trust them all to deliver fair outcomes for all citizens. Having trust does not mean that all members of the community will agree with all government decisions. But if they trust the people making the decision, and the processes used to arrive at that decision are transparent, people are much more likely to understand the reasoning behind a policy and perhaps accept why it has to be so.</p>
<p>The electorate does not speak with one voice. Voters’ wants and demands are contested public policy areas. For example, at this election, people differ on: whether they want the <a href="http://www.heraldsun.com.au/news/victoria/herald-sungalaxy-poll-reveals-airport-rail-link-our-top-priority/story-fni0fit3-1226843123689">East-West Link</a> to be built; how government should go about improving the education and health systems; and what are the best ways to deliver economic growth, tackle climate change and reduce crime. MPs and the governments they form have to thread their way through the minefield of public opinion.</p>
<p>But one area is largely uncontested: the need for greater transparency and accountability.</p>
<h2>Public united on need for open and honest government</h2>
<p>I feel confident that any poll that asked the electorate, “Do you want the government you elect to be open and honest with the people they represent, to be transparent in their actions and accountable for them?”, would receive an overwhelming “yes” response. I say this because I can’t recall any group of people coming together to campaign for less transparent, more unaccountable government.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65643/original/image-20141127-4228-e5cb9q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Auditor-General John Doyle and his predecessors have condemned the lack of ‘follow the money’ powers.</span>
<span class="attribution"><span class="source">VAGO</span></span>
</figcaption>
</figure>
<p>If promising a more secretive state was a vote winner, the leaders of the major political parties would have announced it at their campaign launches. They would have issued press releases guaranteeing, first, that IBAC will continue to operate with one hand tied behind its back; second, that Victoria will never adopt the Queensland <a href="http://www.qld.gov.au/about/rights-accountability/right-to-information/">“right to know” approach</a> to Freedom of Information; third, that members of the parliamentary wing of political parties vow never to have open and continuous political donation laws; and, fourth, that the Auditor-General’s office will continue to operate with the same inadequate <a href="http://www.theage.com.au/victoria/victoria-state-election-2014/four-auditorsgeneral-fear-watchdog-powers-failing-victoria-20141115-11nadk.html">legislation that has hampered it for years</a>.</p>
<p>In other words, MPs and political parties would give a core, written-down, unconditional promise that symbolic politics, which pays lip service to transparent and accountable government, will remain for the next four years. No MP or political party ever utters such words and for a very good reason: it would be political suicide.</p>
<p>So why do they continue to ignore reasoned arguments for greater transparency and accountability, especially when their doing so is contributing significantly to the lack of trust people have in MPs and governments? This, in turn, is starting to negatively affect people’s belief and trust in the political system.</p>
<p>MPs and the governments they form need to remember that people do not vote them into office to do what is in MPs’ personal or party-political interests. They are our elected representatives and therefore their decisions must align with the public good. But this is not happening to the degree it should in Victoria and beyond.</p>
<h2>Breach of trust is poisoning our democracy</h2>
<p>People’s opinions of their elected representatives are transforming from healthy scepticism into harsh cynicism. Unless we can find a way to break the potentially poisonous circle of mistrust, public disdain will escalate and ultimately infect the health of the institutions that form the foundation and framework of our democracy.</p>
<p>It is worth recalling the words of former Chief Justice of the High Court, Sir Gerard Brennan, at the <a href="http://www.accountabilityrt.org/integrity-awards/sir-gerard-brennan-presentation-of-accountability-round-table-integrity-awards-dec-2013/">presentation</a>` of the ART’s 2013 Integrity Awards and of Raimond Gaita in his 2004 <a href="http://books.google.com.au/books?id=oRb9AAAAQBAJ&pg=PA1&lpg=PA1&dq=Breach+of+Trust:+Truth,+Morality+and+Politics&source=bl&ots=kuE42bZ2RQ&sig=7Zu8u1G5Hlu6ena1pOkLKSP9Yqc&hl=en&sa=X&ei=-2h2VIDgLc7i8AW06YG4Aw&ved=0CCEQ6AEwATgK#v=onepage&q=Breach%20of%20Trust%3A%20Truth%2C%20Morality%20and%20Politics&f=false">Quarterly Essay</a>, Breach of Trust: Truth, Morality and Politics.</p>
<p>Sir Gerard raised the <a href="http://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf">public trust</a>-fiduciary duty principle, which goes to the heart of restoring the community’s faith in our MPs, governments and the democratic political system. As he explained:</p>
<blockquote>
<p>It has long been an established legal principle that a member of Parliament holds a fiduciary relation toward the public and undertakes and has imposed upon him a public duty and a public trust. The duties of a public trustee are not identical with the duties of a private trustee, but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by, the interests of the trustee. </p>
</blockquote>
<p>Gaita’s arguments are perhaps even more pertinent today than they were 10 years ago. He wrote:</p>
<blockquote>
<p>To trust someone, you must do more than believe him. You must believe in him. You must believe that he is essentially truthful.</p>
</blockquote>
<p>Gaita observed that there needs to be a “moral dimension” to government policies. How strong is the “moral dimension” of the policies that constitute Victoria’s integrity regime? When held up to Sir Gerard’s and Gaita’s mirror, the words that come to mind are hazy and distorted.</p><img src="https://counter.theconversation.com/content/34710/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Colleen Lewis has previously received funding from the Australian Research Council. She is a member of the Accountability Round Table.</span></em></p>The Accountability Round Table (ART), a non-partisan organisation, wrote to the three major political parties two months ago seeking their position on three important arms of Victoria’s integrity system…Colleen Lewis, Adjunct Professor, National Centre for Australian Studies, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/314562014-10-02T20:18:28Z2014-10-02T20:18:28ZHow to restore trust in politics after the Victorian election<p>A fundamental lack of trust is at the heart of Australian politicians’ extremely poor reputation. It is the main reason why people’s opinions about their elected representatives have mutated from healthy scepticism into corrosive cynicism. Unless we can find a way to break the vicious circle of mistrust, public disdain will infect the health of the institutions that are the foundation and framework of our democratic political system.</p>
<p>So what can be done? Our group, the <a href="http://www.accountabilityrt.org">Accountability Round Table</a>, believes that an important place to start is in Victoria, ahead of the upcoming state election.</p>
<p>The Accountability Round Table is <a href="http://www.accountabilityrt.org/about/">a non-partisan, national body</a> involving former politicians from all major political parties, former judges, current and former academics, lawyers, journalists and other citizens. They all share common concerns about declining standards in public life.</p>
<p>We have sent a letter (<a href="http://www.accountabilityrt.org/wp-content/uploads/2014/09/ART-Victorian-Elections-2014-attachment-and-appendices.pdf">with detailed attachments</a>) to the leaders of Victoria’s major political parties. This seeks a pre-election commitment to act on <a href="http://www.accountabilityrt.org/art-seeks-accountability-committments-prior-to-victorian-state-elections/">three serious issues</a> after the November 29 poll. We’ve called on all parties to support:</p>
<ol>
<li>Giving greater powers to Victoria’s Independent Broad Based Anti-Corruption Commission (IBAC)</li>
<li>Holding an inquiry into public funding of political parties, individual members of parliament and political candidates</li>
<li>Strengthening the public’s right to know, with improved Freedom of Information rules.</li>
</ol>
<p>And for anyone who thinks such accountability measures don’t matter, they do – including having significant, practical economic consequences. </p>
<h2>Tackling corruption</h2>
<p>Victoria does not have an effective anti-corruption body. That’s why we’re calling for Victoria’s IBAC to be given the same ability as New South Wales’ highly effective Independent Commission Against Corruption (ICAC) to tackle suspected and known misconduct and corruption. </p>
<p>While recent changes introduced into the Victorian Parliament address some of the shortcomings in the IBAC Act, they fail to give Victorians what the government promised at the last election: <a href="http://www.accountabilityrt.org/latest-ibac-incarnation-is-still-not-roadworthy/">an anti-corruption body for Victoria</a> akin to ICAC. </p>
<p>Like ICAC, IBAC needs the powers to investigate any allegations or complaints that in its Commissioner’s opinion implies “corrupt conduct may have occurred, may be occurring or may be about to occur”.</p>
<p>The ability to do this has been central to ICAC’s capacity to peel back the layers of unethical and <a href="http://www.smh.com.au/nsw/icac-craig-baumann-becomes-10th-nsw-liberal-mp-to-join-crossbench-after-accusations-of-taking-secret-donations-20140912-10fu12.html">organised scheming by politicians (and others) in NSW</a> and to turn the accountability spotlight onto political funding matters.</p>
<p>To reveal and then reverse unethical and potentially illegal practices, any independent anti-corruption body – and this includes Victoria’s IBAC – requires the powers of NSW’s ICAC. Without it, political funding and other matters cannot be effectively scrutinised.</p>
<p>The discretion granted to the anti-corruption Commissioner is a key factor here. The Victorian government needs to trust those it appoints to head accountability institutions to use their discretionary powers wisely. It is not as if there are no checks and balances in place.</p>
<p>IBAC, like ICAC, is monitored and reviewed by an all-party parliamentary committee. The Victorian Inspectorate can monitor IBAC’s compliance with its statutory obligations and investigate any complaints against the anti-corruption body and its staff.</p>
<h2>Cleaning up political funding</h2>
<p>Victoria lacks appropriate mechanisms for ensuring that funding of political parties does not lead to anti-democratic or corrupt outcomes. That is why we’re calling for an inquiry into political funding.</p>
<p>Specifically, we believe a referral should be given to the Joint Electoral Matters Committee to inquire into the accountability regime of Victoria’s current political funding rules. </p>
<p>Its terms of reference should include a requirement that the committee make recommendations for the legislation needed to provide a system of political funding that will serve and enhance our democracy. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=920&fit=crop&dpr=1 600w, https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=920&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=920&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1157&fit=crop&dpr=1 754w, https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1157&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/60513/original/4mtk8w4b-1412164205.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1157&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>For example, the practice of raising funds by offering access to members of parliament at functions, particularly <a href="http://www.heraldsun.com.au/news/national/tony-abbott-campbell-newman-and-john-howard-to-speak-at-cashforaccess-lnp-fundraiser/story-fnii5v70-1227073664460">senior ministers</a> and <a href="http://www.theguardian.com/world/2014/may/05/nsw-labor-fundraising-program-offers-end-of-year-drinks-with-bill-shorten">shadow ministers</a>, is a major and growing concern. </p>
<p>Payments for access are already a significant source of funding for Australian political parties, as shown in <a href="https://theconversation.com/profiles/joo-cheong-tham-157">Joo-Cheong Tham</a>’s book <a href="https://www.newsouthbooks.com.au/books/money-and-politics_the-democracy-we-cant-afford/">Money And Politics: The Democracy We Can’t Afford</a>.</p>
<h2>The public’s right to know</h2>
<p>It’s also time to overhaul the philosophy underpinning current Victoria’s Freedom of Information laws. We’re asking political parties and individual politicians in Victoria to commit to adopting the model recommended by the 2008 <a href="http://www.rti.qld.gov.au/__data/assets/pdf_file/0019/107632/solomon-report.pdf">Solomon Report</a>, which is now in place in Queensland and Tasmania.</p>
<p>This is based on people’s “right to know” information, also known as the Right to Information principle. </p>
<p>This stands in contrast to Victoria’s approach to Freedom of Information, where public servants respond to specific requests for information. Not all requests are granted and, when they are, full disclosure is not always forthcoming.</p>
<p>The Right to Information principle dictates that governments and public servants respect the community’s right to information about government and public servants’ actions. The only exception is when it is very clear that the public interest requires non-disclosure.</p>
<h2>The value of open government</h2>
<p>Accountability may not seem like the most important issue at this year’s Victorian election. Yet it is vitally important, not just at a state level, but nationally and internationally.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/60471/original/yc7wvbhs-1412128924.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The countries involved in the Open Government Partnership.</span>
<span class="attribution"><span class="source">www.opengovpartnership.org</span></span>
</figcaption>
</figure>
<p>An open and accountable government is crucial for economic growth. International recognition of the link between the two led to the creation in 2011 of the <a href="http://www.opengovpartnership.org/">Open Government Partnership</a>.</p>
<p>Some 64 nations including <a href="http://www.opengovpartnership.org/country/australia">Australia</a> have joined or applied to join this partnership. They have done so because they recognise that economic growth depends on transparent government and that this approach fosters a better life for the many, whereas secrecy only benefits the few.</p>
<p>While the three areas of reform that our group has nominated could be addressed separately, they will be more effective if they are seen as part of an accountability package.</p>
<p>While it may be self-evident to many that corruption thrives on secrecy, Victoria’s accountability regime still does not reflect this well-known truth. It should.</p><img src="https://counter.theconversation.com/content/31456/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Colleen Lewis has received funding from the Australian Research Council in relation to projects on the education and training of Parliamentarians and protecting the reputation and standing of the institution of Parliament. She is a member of the Accountability Round Table.</span></em></p>A fundamental lack of trust is at the heart of Australian politicians’ extremely poor reputation. It is the main reason why people’s opinions about their elected representatives have mutated from healthy…Colleen Lewis, Adjunct Professor, National Centre for Australian Studies, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/261572014-05-11T19:18:25Z2014-05-11T19:18:25ZNewman turning back the clock in Queensland corruption fight<p>The old joke was that visitors to Queensland should turn their clock back one hour and their calendar back 30 years. There are indications state premier Campbell Newman wants to take Queensland back to the time before the <a href="http://www.cmc.qld.gov.au/about-the-cmc/the-fitzgerald-inquiry">Fitzgerald Inquiry</a> blew the lid off political and police corruption in the state.</p>
<p>The <a href="https://www.legislation.qld.gov.au/Bills/54PDF/2014/CrimeMisconductOLAB14.pdf">Crime and Misconduct and Other Legislation Bill 2014 (Qld)</a> (the CMC Bill) has <a href="http://www.brisbanetimes.com.au/queensland/crime-and-misconduct-commission-changes-pass-paving-way-for-crime-and-corruption-commission-20140508-zr6k8.html">just been passed</a> by the Queensland parliament. Tony Fitzgerald himself <a href="http://www.abc.net.au/news/2014-05-01/tony-fitzgerald-says-newman-government-inexperienced-arrogant/5422726">has been highly critical</a> of the changes. </p>
<h2>Giving government control of appointments</h2>
<p>The legislation contains a number of retrograde provisions. Most importantly, it has removed the requirement that the upper echelons of the <a href="http://www.cmc.qld.gov.au/about-the-cmc">Crime and Misconduct Commission</a> (CMC) be appointed with bipartisan support. Previously, the chair and commissioners of the CMC could only be appointed if both the government and opposition agreed. </p>
<p>The legislation gives the government the power to make these appointments in its sole discretion. </p>
<p>The <a href="https://www.parliament.qld.gov.au/documents/committees/LACSC/2014/CMOLAB2014/rpt-062-30Apr2014.pdf">majority report</a> of the Legal Affairs and Community Safety Committee (LACSC) of parliament recommended the appointments take place by way of a committee with a veto power, similar to the system used in NSW for appointments to its Independent Commission Against Corruption (ICAC). The government adopted this recommendation and amended its bill accordingly. The <a href="http://www.parliament.nsw.gov.au/icac">NSW ICAC Committee</a> is made up of 11 members, with six from the government (including the chair and deputy chair), four from the ALP and the Reverend Fred Nile.</p>
<p>Newman has a <a href="http://www.brisbanetimes.com.au/queensland/queensland-government-sacks-parliamentary-crime-and-misconduct-committee-over-ken-levy-affair-20131121-2xz3h.html">track record</a> of interference, having sacked the entire membership of the Parliamentary Crime and Misconduct Committee (PCMC) last November. This was in circumstances where the PCMC was investigating whether the acting chair of the CMC, Dr Ken Levy, had misled the PCMC in his evidence about contact with government figures before publishing an article supporting a <a href="https://theconversation.com/the-battle-to-win-hearts-and-minds-in-queenslands-bikie-war-23283">government crackdown on bikies</a>.</p>
<p>The government was able to appoint Levy without the need for bipartisan support, because he is only acting in the role of chair. When the PCMC was sacked, the investigation of Levy was <a href="http://www.brisbanetimes.com.au/queensland/select-ethics-committee-to-investigate-pcmc-and-cmc-boss-20131202-2ym5u.html">referred</a> to a select committee on ethics. </p>
<p>That was in November 2013. The committee is <a href="https://www.parliament.qld.gov.au/work-of-committees/committees/SCE">yet to produce any report</a>. It has not had any hearings nor have submissions been allowed from interested parties. </p>
<p>The chair of the committee, David Gibson, has just <a href="http://www.abc.net.au/news/2014-04-23/david-gibson-steps-down-as-chairman-of-qld-ethics-committee/5406858">stepped down</a> from the role because of revelations of theft charges from his army days. Gibson has announced he will not re-contest the seat of Gympie because he is having a <a href="http://www.abc.net.au/news/2014-05-02/nervous-breakdown-prompts-qld-mp-david-gibson-to-quit-politics/5427540">nervous breakdown</a>.</p>
<p>State attorney-general Jarrod Bleijie, who introduced the CMC Bill, <a href="http://www.gympietimes.com.au/news/bleijie-rejected-full-disclosure-push/2240425/">overrode a unanimous vote</a> at the Liberal-National Party July 2013 state convention to require candidates to make full disclosure of their criminal history. </p>
<p>It is difficult to see how any parliamentary committee will be able to effectively exercise a veto power when it is stacked with government members and all members of the committee are aware they can be sacked at the whim of the premier.</p>
<p>Meanwhile, the CMC legislation guarantees Levy’s appointment is extended until the end of October this year. This would see Levy acting in the role for around 18 months.</p>
<h2>Muzzling the corruption watchdog</h2>
<p>Another retrograde feature of the legislation is the suite of changes that effectively truncate the powers of the body.</p>
<p>The renamed Crime and Corruption Commission loses the function of preventing corruption and would need the approval of the attorney-general to conduct research. The CEO of the CCC, a new position and another direct government appointment, has the power to direct that the CCC not investigate a particular matter.</p>
<p>This narrowing of the powers of the corruption watchdog occurs at the same time as the Independent Broad-based Anti-corruption Commmission (IBAC) in Victoria is desperately <a href="http://www.theage.com.au/victoria/napthine-promises-to-adopt-ibac-recommendations-20140416-36r5q.html">seeking broader powers</a> so it can deal effectively with corruption.</p>
<p>Some of the provisions in the CMC legislation are inexplicable. The government reinstated the word “chairman”, contrary to the provisions of the <a href="https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/R/ReprintA92.pdf">Reprints Act 1992 (Qld)</a>, which state that “chairperson” may replace “chairman” consistent with current legislative drafting practice. </p>
<p>This may be a swipe in the direction of the President of the Court of Appeal, Margaret McMurdo, who accused the Newman government of <a href="http://www.brisbanetimes.com.au/queensland/jarrod-bleijie-defends-leaking-confidential-chat-20140324-35eih.html">“unconscious bias”</a> against women, in including only <a href="https://theconversation.com/missing-female-judges-all-but-invisible-in-queensland-row-24904">one female in the 17 judicial officers</a> appointed in this term of office.</p>
<p>Peter Wellington MP tabled a <a href="http://www.change.org/en-AU/petitions/queensland-parliament-do-not-make-us-relive-history-save-the-independence-of-the-cmc">petition</a> against the changes on the night the legislation was passed, with close to 10,000 supporters. This was ignored by the government, as was <a href="http://www.reachtel.com.au/blog/stafford-poll-drchrisdavis-6may2014">polling conducted by Chris Davis</a>, the member for Stafford, which showed nearly 75% of respondents in his electorate supported bipartisan appointments.</p>
<p>The Newman government agenda appears to involve dragging Queensland back to the Joh Bjelke-Petersen era. The detailed and reasoned analysis of experts opposed to the CMC Bill is being afforded the same level of consideration that Bjelke-Petersen gave his critics.</p>
<hr>
<p><em>This article has been updated to reflect the passing of the legislation.</em></p><img src="https://counter.theconversation.com/content/26157/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex McKean is affiliated with the Law and Justice Institute (Qld), Australian Lawyers for Human Rights and the Amnesty International Queensland Legal Network</span></em></p>The old joke was that visitors to Queensland should turn their clock back one hour and their calendar back 30 years. There are indications state premier Campbell Newman wants to take Queensland back to…Alex McKean, Barrister and Lecturer in Law, University of the Sunshine CoastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/141382013-08-21T20:34:11Z2013-08-21T20:34:11ZFooty, coffee and corruption: the Victorian disease<figure><img src="https://images.theconversation.com/files/29633/original/v8wmxq5h-1377051623.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Victorian premier Denis Napthine may need to expedite reform to the state's anti-corruption practices if a recent ombudsman's report is any guide.</span> <span class="attribution"><span class="source">AAP/Joe Castro</span></span></figcaption></figure><p>To steal a line, there’s something rotten in the state of Victoria. It has a serious problem with corruption, and may find itself ill-equipped to fight it.</p>
<p>This might come as a surprise to Victorians, who have often looked down their noses at the questionable activities taking place elsewhere (for example, in police forces and governments in New South Wales and Queensland). But it is true, and increasingly difficult to deny.</p>
<p>Victoria Police has found members engaged in misconduct of their own volition (disbanding units like the <a href="http://www.theage.com.au/news/in-depth/they-were-rotten-to-the-core/2006/10/18/1160850994339.html?page=fullpage">Drug Squad</a> and <a href="http://www.theage.com.au/news/national/police-accused-of-brutality/2006/09/18/1158431645202.html?page=fullpage#contentSwap2">Armed Offenders Squad</a> for problems ranging from ill discipline to corruption including drug trafficking). More recently, they have admitted <a href="http://www.abc.net.au/news/2013-05-06/police-taskforce-on-substantial-information-leak/4671862">large-scale leaks</a> and discovered <a href="http://www.heraldsun.com.au/news/law-order/police-launch-taskforce-eagle-to-fight-possible-inflitration-by-bikie-gangs/story-fnat79vb-1226607223226">efforts to infiltrate their ranks and corrupt their officers</a>.</p>
<p>And the Victorian government has not been immune from accusations of improper behaviour, either, as the Baillieu/Napthine Coalition administration has discovered on multiple occasions (see events involving MP <a href="http://www.heraldsun.com.au/news/rogue-mp-spoken-to-by-police-over-alleged-car-and-fuel-rorts/story-e6frf7jo-1226627088934">Geoff Shaw</a>, or <a href="http://www.theage.com.au/victoria/baillieu-calls-in-ibac-over-hush-money-claims-20130304-2fgxl.html">Tristan Weston and Tony Nutt</a>).</p>
<p>To make matters worse, the legislative architecture for investigating corruption in Victoria has serious shortcomings. Aspects of it may even be unconstitutional. </p>
<p>Does Victoria have the institutional wherewithal not just to inspect allegations of minor misconduct, but also to conduct investigations of more grand accusations, such as <a href="https://theconversation.com/icac-calls-for-criminal-charges-against-nsw-alp-kingmakers-the-experts-respond-16549">those levelled</a> at former NSW Labor powerbroker Eddie Obeid? Unanswered questions about the state’s integrity system, along with problems reiterated by the Victorian Ombudsman, give genuine cause for concern.</p>
<h2>Debate about integrity reform in Victoria</h2>
<p>Since its inception in late 2011, criticism about the legislation that established Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) has been aired publicly on a regular basis from a range of experts. Concerns include the <a href="http://www.abc.net.au/news/2012-06-23/calls-for-changes-to-anti-corruption-body/4087896">very high evidentiary threshold</a> required for IBAC to conduct investigations, and the fact that IBAC is <a href="http://www.theage.com.au/victoria/baillieus-baby-lacks-bite-20120309-1uq22.html#ixzz1v4QqAT5N">restricted to investigating “serious” corruption</a> (even though what qualifies as “serious” is not defined).</p>
<p>In late 2012, shortly after <a href="http://www.abc.net.au/pm/content/2012/s3642184.htm?site=brisbane">penning a letter to then-premier Ted Baillieu</a>, the Ombudsman released a <a href="http://www.ombudsman.vic.gov.au/resources/documents/Report_Section_25-2_proposed_integrity_system_-_impact_on_functions_of_the_Ombudsman.pdf">report to Victorian state parliament</a> on the legislation that established the new integrity system. Neither the letter nor the report were optimistic. Part 1 of the <a href="http://www.ombudsman.vic.gov.au/www/html/352-annual-report-2013.asp">Ombudsman’s 2012-13 annual report</a>, tabled in parliament, remains openly critical of the legislation, stating that it is “clumsy and presents operational problems for all concerned”. </p>
<p>The report also warns that the restriction of corruption investigations to “serious” corruption ignores the sorts of cases that create the bulk of the Ombudsman’s more significant work and investigations. The sort of problems with corrupt organisational cultures alleged to be troubling Customs, for example, are a common and substantial problem in when it comes to anti-corruption regimes. However, they would not necessarily be considered “serious” corruption in the context of Victorian legislation. And the problem is more complex than just restricting investigations to serious corruption.</p>
<h2>The hole in the system</h2>
<p>There is a substantial gap between the kinds of cases that IBAC and the Ombudsman can investigate at will. According to the <a href="http://www.austlii.edu.au/au/legis/vic/num_act/ibacafa201213o2012866/">Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act (2012)</a>, IBAC “must not” investigate a case unless it is “reasonably satisfied that the conduct is serious corrupt conduct” (the high evidentiary threshold which experts fear will leave the body open to jurisdictional challenges). </p>
<p>However, the <a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/218B9392A3D83864CA257AD80013F9AB/$FILE/12-082aa%20authorised.pdf">Integrity and Accountability Legislation Amendment Bill (2012)</a> amended the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/oa1973114/">Ombudsman Act (1973)</a> to state that the Ombudsman “must not conduct an own motion investigation into any administrative action that appears to involve corrupt conduct.”</p>
<p>The result is that while IBAC can only investigate cases where there is clear and “serious” corruption, the Ombudsman is now prohibited by law from starting an investigation into anything that bears even a whiff of corruption of any kind. There’s a pretty big gap in between the two. </p>
<p>There is an argument that says this gap isn’t a problem, because IBAC will work as a clearing house for complaints and, once someone refers a matter to IBAC, IBAC can pass it to the Ombudsman, who can investigate matters involving corruption if they are referred to the Ombudsman by IBAC.</p>
<p>While this doesn’t address the fact that there will be many cases of misconduct or corrupt conduct that neither IBAC nor the Ombudsman will be allowed to proactively investigate (a fundamental feature of effective investigative bodies around the world), it at least means that no complaints will fall between the cracks, right? Not exactly. </p>
<h2>Time is of the essence</h2>
<p>Consider the case of MP Geoff Shaw and the allegations that he used his parliamentary vehicle for commercial use. The Ombudsman received a complaint about Shaw in June 2012, began an investigation and <a href="http://www.ombudsman.vic.gov.au/resources/documents/wpa_investigation_into_allegations_against_mr_geoff_shaw_mp_11_oct_2012.pdf">presented a report</a> on the matter in around four months. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=367&fit=crop&dpr=1 600w, https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=367&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=367&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=461&fit=crop&dpr=1 754w, https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=461&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/29635/original/7mjdfhg9-1377052182.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=461&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Despite a report into the conduct of MP Geoff Shaw having been completed by the ombudsman last year, no action has been taken by the parliamentary privileges committee.</span>
<span class="attribution"><span class="source">AAP/Julian Smith</span></span>
</figcaption>
</figure>
<p>On that report’s recommendation, the matter was referred to the Victorian parliament’s Privileges Committee. It’s approaching 11 months since that recommendation and there’s still no finding from the committee, which now has its third chair after its first, Denis Napthine, became premier in March and its second, Andrew McIntosh, <a href="http://www.abc.net.au/news/2013-04-16/andrew-mcintosh-resigns-from-cabinet/4632552">resigned his position in April</a> after admitting to “unacceptable” conduct.</p>
<p>Suppose the Ombudsman’s office received a similar complaint today. Before investigating, it would have to first consider whether the matter “appears to involve corrupt conduct” and, if so, refer it to the IBAC. IBAC would then need to consider whether or not the case meets its high evidentiary threshold. If not, IBAC would refer the matter back to the Ombudsman.</p>
<p>So what’s the difference if the Ombudsman ultimately still gets to investigate the complaint? Such investigations often hinge on the extent to which events are still fresh in the minds of parties involved. Delays frustrate the chances of a proper and full investigation, making it less likely a report would compel further action.</p>
<h2>Matters that can’t be reported, and the big fish that can get away</h2>
<p>The idea of having the Ombudsman investigate matters referred to it by IBAC may be fine in principle, but in practice new restrictions on the Ombudsman’s powers introduced by the proscriptive amendments in late 2012 may create additional problems and frustrate investigation. For example, the Ombudsman is now prohibited from reporting on Cabinet information: this could include cabinet documents and even notes to ministers from advisers.</p>
<p>Similarly, in a parliamentary report released last in May on an <a href="http://www.ombudsman.vic.gov.au/resources/documents/Magistrates_Court_May_2013.pdf">investigation into alleged improper conduct</a> by a registrar of the Magistrates’ Court, the Ombudsman notes that such an investigation would be unlikely to be able to be reported (by any of Victoria’s integrity bodies) had the allegations been made under the current legislation. The ability to publicly report on such findings is fundamental to a transparent and effective integrity system.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=474&fit=crop&dpr=1 754w, https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=474&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/29634/original/rkbnhgg3-1377052009.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=474&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Victoria Police has had to deal with corruption its ranks in the past.</span>
<span class="attribution"><span class="source">AAP/Julian Smith</span></span>
</figcaption>
</figure>
<p>But forget about Magistrates’ Court registrars and MPs with government cars. Victoria’s watchdogs would be able to tackle really big cases of corruption, wouldn’t they? If an investigation like recently concluded ICAC inquiry into the Obeid saga in NSW were required south of the border, for example? <a href="http://www.bordermail.com.au/story/1343211/corruption-watchdog-seriously-flawed/">Not according to Stephen Charles, QC</a>, who chaired the Victorian government’s advisory panel on IBAC. He feels the evidentiary requirements and related problems are such that it is unlikely that IBAC would be able to investigate even an allegation as serious as this.</p>
<h2>Possible patches, but bigger problems</h2>
<p>Small changes could help fill the gap between the kinds of cases each body can investigate, and reduce the prospect of the kinds of jurisdictional challenges that experts are concerned about.</p>
<p>For example, change the wording of the Independent Broad-based Anti-Corruption Commission Act (2011) to state that the body must not commence (rather than conduct) investigation unless reasonably satisfied that serious corruption took place.</p>
<p>In addition, allow the Ombudsman to commence investigations or respond to any and all complaints except when the matter involves serious corruption (rather than prohibiting them from investigating unless they are sure it doesn’t involve serious corruption), with the requirement that if, in the conduct of an investigation, the Ombudsman becomes reasonably satisfied that serious corruption took place, they must then notify IBAC.</p>
<p>This would help avoid delays, allowing the Ombudsman to start investigating in response to complaints while notifying IBAC if and when appropriate, and having IBAC take over if and when it decides that it should do so. This would allow prompt and appropriate commencement of investigation, but would still ensure that matters were ultimately referred to the desired bodies (though it still wouldn’t address the absence of a definition of “serious” corruption, or the challenges in even trying to establish such a definition).</p>
<p>Even if changes like this were made, however, one of the remaining unanswered questions in the Ombudsman’s 2012 report is about a broader problem. That report warned that the restrictions on the independence of the Ombudsman’s office may render sections of the Victoria’s integrity unit unconstitutional (given that the office’s independence is constitutionally enshrined) - a concern which has not since been addressed and which is restated in yesterday’s annual report. </p>
<p>If the constitutionality of sections of this legislation can be challenged, that threatens to compromise the very system it has established. </p><img src="https://counter.theconversation.com/content/14138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Pottenger does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To steal a line, there’s something rotten in the state of Victoria. It has a serious problem with corruption, and may find itself ill-equipped to fight it. This might come as a surprise to Victorians…Mike Pottenger, Lecturer, Statistics & Political Economy, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.