Since the introduction of legislation in the middle of 2016 to amend the independent Broad-based Anti-corruption Commission Act 2011 (the IBAC Act) there has been much conjecture as to whether the amendments have broadened IBAC’s investigation powers. In short, there is no doubt that they have.
IBAC’S jurisdiction and its investigative threshold has been enhanced significantly by virtue of the amendments. Its role has also been fundamentally expanded by virtue of the mandatory reporting regime which came in to operation on 1 December 2016. The regime places a positive obligation on heads of public departments and CEO’s of local councils and others to mandatorily notify IBAC in circumstances where they suspect corrupt conduct occurring.
Putting to one side the most recent amendments, IBAC has extensive investigative powers available to it. These include phone tapping, using surveillance devices, search warrants and compulsory powers to compel the production of documentary and oral evidence. These powers extend well beyond the investigative powers of ASIC and the ACCC and most other Australian regulators. The amendments introduced recently enhance these powers.
IBAC’s power to commence an investigation derives from section 60 of the IBAC Act. No longer must IBAC be “reasonably satisfied that conduct is serious corrupt conduct”. Its threshold to commence an investigation now only requires it to “suspect on reasonable grounds that conduct constitutes corrupt conduct”; serious or otherwise.
Similar to its New South Wales equivalent the Independent Commission Against Corruption (ICAC), IBAC can now also undertake preliminary investigations for the purposes of determining whether to undertake an investigation. Whist IBAC cannot utilise the same broad investigative powers as ICAC in respect of a preliminary enquiry it does have the power to compel the production of documents and information from public bodies and individuals.
The amending legislation has also expanded the definition of corrupt conduct to include the common law offence of misconduct in public office. Misconduct in public office is a broad ranging offence that can extend to out of hours conduct of a public officer. Acts such as falsifying accounts to conceal or obtain a benefit, wilful failure to perform a mandatory public duty without public excuse and misuse of official information are all examples of misconduct in public office. Previously, the definition of corrupt conduct was limited to indictable offences and the serious common law offences of perverting the course of justice, attempting to pervert the course of justice and bribery.
Although the offence of misconduct in public office is most relevantly applicable to the conduct of police officers it will extend IBAC’s capacity to investigate the activities of public servants in government departments and statutory bodies. The Law Institute of Victoria has previously submitted that the definition of corrupt conduct should have been broadened to include all indictable common law criminal offences; that is, crimes not included in legislation that are usually only triable by judge and jury. In time it’s anticipated that this will likely occur.
The type of conduct that can constitute “corrupt conduct” has been extended by the amending legislation to include conduct of a person which is intended to adversely affect the effective (as opposed to honest) performance or exercise by a public officer or body and result in the person (or an associate of the person) obtaining some form of benefit or gain. The unusual aspect of this amendment is that IBAC now has power to investigate corruption even though it has not occurred as a result of the direct actions of a public officer or body but rather someone who has engaged with a public body or officer and sought to obtain some sort of benefit for themselves or an associate.
In addition to the substantive amendments outlined above IBAC also has the power to make suppression orders to prevent the public reporting of evidence given in a public examination. We anticipate this will increase the likelihood that IBAC will undertake more public examinations as it will be able to suppress any evidence which may be considered prejudicial to a suspect or a witness.
As at the time of writing this article IBAC tabled in the Parliament a report detailing its investigation into corruption in relation to the Bendigo Health’s construction of the Bendigo Hospital. The investigation was initiated prior to the introduction of the amending legislation and was informed by way of documentation produced either voluntarily or by summons, 45 witness statements, 3 private examinations and the execution of a search warrant at a residential home.
The conduct uncovered by IBAC relates to allegations against a former construction manager and the entity’s CEO and relates to a variety of allegations including the misuse of Bendigo Health materials in renovations to a private residence and the sale of Bendigo Health property without proper authorisation and for personal gain. One of the individuals involved has already been charged and pleaded guilty to 8 counts of theft and obtaining property and financial advantage by deception. Recommendations have also been made in relation to Bendigo Health’s policies and procedures which require it to report back to IBAC by 30 September 2017 in respect of the steps it has taken to address IBAC’s concerns.
In the year ending 30 June 2016 (and prior to the implementation of the amending legislation) IBAC received and assessed 4576 allegations, commenced 19 new investigations, held two public investigations and completed 7 investigations. It remains to be seen whether the most recent amendments impact these figures in any way. However, regardless of the statistics published at the end of the current financial year, there is no doubt that the birth of IBAC in 2012, the powers granted to it pursuant to the IBAC Act and the recent amendment give it real power to investigate public sector corruption in Victoria and to fulfil both retributive and general deterrent objectives.
Authors: Kylie Hall
T: +61 3 9321 9752
T: +61 3 9321 9827
Greg Wrobel, Partner
T +61 2 8083 0411
Toby Boys, Partner
T: +61 7 3135 0649
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