Thursday, 20 December 2012

Anti-corruption bodies set to start 1 Jan 2013?

I mentioned back in October that Brendan Murphy QC was appointed as the newly-created public interest monitor.

Last week the Victorian government appointed the head of its new IBAC, Stephen O'Bryan SC, and the Victorian Inspector, Robin Brett QC, who will oversee the IBAC.

One recent opinion article in The Age cast doubt on the likely effectiveness of IBAC. I confess I haven't read the legislation in any detail, but the gist of that article is that IBAC will be nobbled because it isn't specifically empowered to investigate misconduct in public office. But, on my very perfunctory reading, the new definition of corrupt conduct to be inserted into the IBAC legislation is so broad that it would probably catch conduct that would fall under the heading of misconduct in public office. No doubt that will be fertile ground for consideration at some stage...

On Wednesday, the government appointed two full-time deputy public interest monitors to assist the current PIM, Janine Gleeson and Joanne Smith. (I only know this because until Wednesday, I was sharing chambers with Janine, and now it's all rather quiet and lonely there. Intriguingly, the media release isn't available on the government's media release website. Maybe that's because this is all cloak-and-dagger stuff...)

Apparently the PIM is slated to start operation on 1 January 2013, so I guess that the other two new agencies are also intended to commence operating on the same day. I also guess that would mean the OPI would stop operating on the same day, but I haven't seen anything about that one way or the other. Does anyone else know?

1 comment:

Jeremy Gans said...

Hi Kyle,

The definition of corrupt conduct is generally broad, but it is narrowed by the definition of 'relevant offence', which is limited to indictable statutory offences and three common law offences (perjury, etc), but not the common law offence of misconduct in public office. As well, s41(2) provides that the IBAC cannot conduct an investigation unless it is reasonably satisfied the conduct is 'serious' corrupt conduct. ('Serious' is not defined. The Ombudsman makes a (debateable) argument that s41(2) also requires the Ombudsman to be satisfied that the conduct fits the definition of 'corrupt' before it can investigate.)

None of that is to say that the argument being pushed by the Age - that this gap will seriously limit the IBAC - is right. At least some, maybe a lot, of conduct captured by the common law offence will also be captured by a statutory one. And the common law offence is very broad with some pretty uncertain features, despite some clarification by the courts, which raises an argument that it's not appropriate for a powerful agency like IBAC to investigate. I can't help but think that the Age's campaign is informed by journalists' natural interests in the newsworthy combination of a powerful investigative agency and marginally criminal but highly discreditable conduct by public officials.

As for the start date, 1/1/13 does seem plausible, especially as the federal A-G has just given the IBAC telecommunications intercept powers. But I don't think the commencement of the PIM is a big sign. The PIM's functions are to monitor coercive powers by anyone, not just the IBAC, including some powers IBAC doesn't have (e.g. preventative detention and prohibited contact under the Terrorism (Community Protection) Act.)