Today Victoria’s Anti-Corruption Commission opened a public hearing into allegations of branch stacking by Labor MPs and their staff.
The news comes as Victorian Premier Daniel Andrews is being questioned by the Victorian Independent Broad-based Anti-Corruption Commission (IBAC) over his dealings with the firefighters’ union (Andrews says he has “behaved fairly”).
It also comes as New South Wales Premier Gladys Berejiklian sensationally fell on his sword last month. She resigned following revelations from the NSW Independent Commission Against Corruption (ICAC), which was investigating whether there was a conflict between her public duties and private interests, which she denies.
This has further intensified the debate about the proposed Federal Integrity Commission. The Morrison government is expected to introduce legislation to establish the Commonwealth Commission by the end of the year. But its proposed model has been criticized for being too weak.
So, what are these anti-corruption commissions? And what are the differences between ICAC in NSW and IBAC in Victoria?
What are Anti-Corruption Commissions?
Anti-corruption commissions investigate corruption in the government. They can be given strong coercive powers to do so, including the power to coerce documents and witnesses.
The ICAC was founded in NSW in 1988 by then-Premier Nick Greiner. A few years later, Greiner became the first prime minister to resign because of an ICAC investigation. The IBAC of Victoria was established in 2012 following an election commitment by the Baillieu coalition government (which had pledged during the opposition).
There are three main differences between IBAC and ICAC – Jurisdiction, Power and Procedures.
IBAC vs ICAC
When the IBAC was established, it was criticized as a “toothless tiger” by prominent former judges at the Accountability Roundtable, given the high extent of its investigation – it was “seriously corrupt” before the investigation began. conduct”.
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 offense before the investigation can begin. It is a difficult obstacle to overcome.
Read more: A federal ICAC must eliminate confusion between integrity questions and corruption
The Andrews government increased the jurisdiction of the IBAC in 2016, removing the requirement for corrupt practices to be “serious”, and adding the ability to investigate misconduct in public office.
But the jurisdiction of the IBAC is more limited than that of the ICAC, which has broader powers to investigate any allegations of corruption. This allegedly includes substantial violations of the ministerial and MP code of conduct.
The powers of IBAC are also more limited than that of ICAC. It is unable to use coercive powers to conduct a preliminary inquiry to determine whether there should be a full investigation of the cases. In contrast, the ICAC has full use of coercive powers, including preliminary investigation.
Read more: As NSW premiership falls and SA guts its anti-corruption commission, what are the lessons for integrity bodies in Australia?
Finally, the ICAC certainly holds public hearings. But the IBAC can hold public hearings only in exceptional circumstances and when it is in the public interest to do so.
In short, ICAC is a more powerful commission than IBAC.
Who watches the guards?
A big question is how do we ensure that anti-corruption commissions do not go beyond their limits. Given their massive coercive powers, how do we hold them accountable?
In Australia, anti-corruption commissions are subject to a strong system of accountability through parliaments and the courts.
The IBAC and ICAC report to dedicated parliamentary committees that examine their actions and decisions. Complaints can be made against IBAC and ICAC to a dedicated Inspectorate – an independent statutory authority overseeing their operations.
Where anti-corruption commissions go beyond the legal limits of their roles, the courts will monitor this. For example, in 2015, the High Court closed an investigation against Crown Prosecutor, Margaret Cunin. After the court found that the ICAC had no power to investigate the allegations, Cunin had advised his son’s girlfriend to fake chest pain in order to avoid a breath test after the car accident. This is because Kunin’s action occurred while acting as a private citizen (not as Crown prosecutor) – and therefore did not fit the definition of “corrupt conduct” in NSW law.
So the idea that anti-corruption commissions are not accountable is simply untrue.
Anti-corruption commissions such as the IBAC and ICAC are unpopular within governments because they investigate government action and may uncover unfair practices or corruption within their ranks.
It is regrettably common for governments hostile to anti-corruption commissions to attack them, including curtailing their powers or funds.
Read more: ICAC is not a curse, and there is integrity in government affairs. The Australian media would do well to remember that
In this vein, one can anticipate the latest flurry of criticism by ICAC politicians following Berejiklian’s resignation. This is part of a wider pattern of attacks on surveillance bodies that police government actions.
This is despite their integral role in our democracy. Along with other oversight bodies such as the Ombudsman and the Auditor General, anti-corruption commissions are part of a complex, interlocking integrity framework that oversees executive action.
In this light, the framework of the proposed Commonwealth Integrity Commission is fundamental. Australians deserve a strong system of accountability that will keep our politicians honest.