R v IBAC [2016] HCA 8 –High Court considers the companion rule, the privilege against self-incrimination and whether an anti-corruption agency examine persons who may be charged with a criminal offence

In the case of ICAC v Cuneen [2014] HCA 14 the High Court examined the powers of the Independent Commission Against Corruption (ICAC), causing intense media and legal scrutiny of the powers of ICAC and other anti-corruption agencies. In 2016 the High Court has turned its focus to ICAC’s Victorian equivalent, the Independent Broad-based Anti-corruption Commission (IBAC). In R v IBAC [2016] HCA 8 (R v IBAC), the High Court examined the question of whether IBAC could summon two police officers who had allegedly committed assault and who may be charged with the offence to give evidence before IBAC about the same matters. The decision is important in that it reaffirms the principles of the privilege against self-incrimination, is an example of how statute can abrogate common law rights, and indicates how other anti-corruption agencies with similar statutory regimes (such as ICAC) should approach such situations.

Before reading this blog post I recommend you read my blog post detailing the main differences between ICAC and IBAC.

Facts

Victoria Police commenced “Operations Ross” on 20 March 2015 to investigate alleged incidents at Ballarat police station which may have involved human rights violations in respect of women. One particular incident to be investigated was whether police officers assaulted a woman in a cell on 15 January 2015. IBAC decided to investigate the matter using its powers to investigate serious police personnel misconduct and issued summons to the police officers on 1 April 2015 to give evidence in public examination of their knowledge of matters in Operations Ross. The police officers were suspended from duty on 2 April 2015 on the basis they were reasonably believed to have committed the offence, but were not charged at that point in time. The police sought to challenge the power of IBAC to publicly examine persons on the same matter for which they are likely to be charged with an offence.

Two legal questions before the High Court

1.       Does the “Companion Rule” extend to situations where a person has not yet been charged with an offence?

2.       Does s.144 of the IBAC Act apply to persons not yet charged with an offence?

Road to the High Court

On 10 April 2015 the police wrote to the IBAC Commissioner and submitted that they could not be compelled to give evidence. The IBAC Commissioner rejected the submissions on 15 April 2015. On 16 April the police commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing IBAC from examining the police officers. Justice Riordan rejected the argument holding that as the appellants had not yet been charged with an offence the process of criminal justice had not commenced and the entitlement to protection from self-incrimination was not yet operative. The police were also unsuccessful before the Court of Appeal, where their Honours held the IBAC Act “intended that the persons, who might be examined, include persons who might have been implicated in that conduct”. 

High Court decision

The High Court unanimously dismissed the appeal and held:

1.       The “Companion Rule” does not extend to situations where a person has not yet been charge with an offence; and

2.       Section 144 of the IBAC Act applies to all persons issued with a witness summons, including persons not yet charged with a criminal offence.

French CJ, Kiefel J, Bell J, Keane J, Nettle J, and Gaudron J gave reasons in a joint judgment and Gageler J wrote separate reasons.

High Court’s legal analysis

1.       The “companion rule”

The fundamental principle of the common law in criminal proceedings is that the prosecution must prove the guilt of the accused person. The companion rule is derived from this fundamental principle and was enunciated by the High Court in Lee v The Queen (2014) 253 CLR 455:

“The companion rule to the fundamental principle is that an accused cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.”

The authorities make it clear that the operation of the companion rule is dependent on the judicial process having been engaged by a person being charged with but not yet tried for a criminal offence. In R v IBAC, the appellants asserted as one of their submissions that the police under investigation could not be summoned to give evidence before IBAC as it would breach the companion rule. The High Court held in the present case the companion rule is not engaged as the appellants have not been charged and no prosecution is pending ([48]). The High Court refused to extend the operation of the companion rule to situations where a person had not yet been charged for the following reasons:

1.       The rationale behind the authorities for the companion rule is to protect the forensic balance between prosecution and accused in the judicial process as it has evolved at common law – this rationale does not extend to persons who have not yet been charged ([48]).

2.       Extending the companion rule in this instance would be contrary to the objects of the IBAC Act which include identifying, investigating and exposing police personnel misconduct (s.8 IBAC Act), and applying the companion rule in anticipation of commencement of criminal proceedings would frustrate the ability of IBAC to carry out this object ([51]).

3.       The appellants failed to clearly enunciate the extent to which the companion rule should be extended, varying their submissions from “persons reasonably believed to have committed a criminal offence” to “a person the specific subject of an investigation” to “a person reasonably suspected of having committed a criminal offence” ([49]).

4.       If the companion rule was extended to protect persons reasonably suspected of having committed a criminal offence, there is uncertainty as to who is to hold the suspicion, especially where different persons having access to different bodies of information may have different views on the issue ([50]).

Gageler J gave similar reasons to the joint judgment, concluding that the extension of the companion rule in this situation frustrates a clear object of the legislation which is “the identification, investigation and exposure of serious corrupt conduct and police personnel misconduct” ([74]) and ([77]).

His Honour also noted a number of issues not considered in the joint judgment did not consider. First Gageler J noted the importance of considering Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Victoria’s Charter), and in particular how the companion rule interacts with s.25(2)(k) which contains the right of a person charged with a criminal offence “not to be compelled to testify against himself or herself to confess guilt”. His Honour did not answer the question as it had not been explored in argument. Second, Gageler J noted that no attention had been given to the detailed statement of compatibility provided to Victorian Parliament when the IBAC Bill was debated. The statement of compatibility usefully explained that the abrogation of an individual’s right against self-incrimination was justified in this instance “to assist the IBAC in its functions as a truth-seeking body that is able to undertake full and proper investigations”. Neither the appellants nor respondents considered the statement of compatibility in argument.

2.       Self-incrimination and section 144 of the IBAC Act

Ordinarily a person is entitled to claim the privilege against self-incrimination where a person’s answer is likely to incriminate them. This privilege is based on the fundamental principle that the prosecution must prove the guilt of the accused and that an accused has the right to remain silent. The High Court referred to Sorby v The Commonwealth (1983) 152 CLR 281 where Gibbs CJ referred to R v Boyles (1861) 1 B&S 311 in enunciating when the privilege against self-incrimination is enlivened:

“to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the person is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer”.

The common law privilege can be curtailed by statute. In R v IBAC, the High Court held that the IBAC Act clearly intended to abrogate the common law privilege against self-incrimination, as the broad purpose of Pt 6 of the IBAC Act is to obtain material not presently available to advance the objective of maintaining public confidence in the police force ([55]), and such information would likely include information that may be self-incriminating. Further, s.144 clearly abrogates the privilege.

Section 144 provides that a witness is not excused from answering a question, giving information or producing a document when summoned on the ground the answer, information or document might tend to incriminate the person (s.144(1)). However, while this information must be given by a witness summoned by IBAC, the self-incriminating information cannot be used against the witness in judicial proceedings (subject to a few limitations) (s.144(2)).

The appellants argued that s.144 does not apply to persons yet to be charged with a criminal offence. The High Court rejected this argument, as the section read with the evident purpose of the IBAC Act points to an intention that s.144 applied to all witnesses summoned including witnesses who have not yet been charged with an offence, as objective of maintaining public confidence in the police force may include obtaining information that is self-incriminating. 

Gageler J gave similar reasons to the joint judgment noting:

·         The IBAC Act clearly manifests the intention that a person summoned and examined might be a person whose criminal police personnel misconduct is the subject matter of the investigation; and

·         The use of the word “a person” in s.144 clearly contemplates any witness summoned cannot be excused from providing information on the grounds of self-incrimination.

Implications and lessons to learn

The case reaffirmed that the companion principle only applies to persons charged with a criminal offence. It is also a useful example of how the common law privilege against self-incrimination can be abrogated by statute. ICAC’s statute contains a similar provision to s.144 of the IBAC Act which abrogates the common law privilege against self-incrimination but provides this information can only be used for the purposes of the investigation concerned (s.26 ICAC Act), so R v IBAC indicates how the High Court would decide a similar case in the NSW jurisdiction.

In R v IBAC the High Court also reaffirmed IBAC’s clear powers to summon any person for examination. ICAC’s statute contains similar provisions, so the decision may have some value in reaffirming ICAC’s powers to summon any person for examination.  

Importantly for those practising working with Victorian statute, Gageler J’s reasons provide useful reminders to ensure you consider Victoria’s Charter and statement of compatability in your submissions and argument, as it may be helpful for interpretation purposes, and some judges find these arguments particularly persuasive.

How to food prep like a pro for the working week

Staying on top of life administration like cooking as a junior lawyer can be tough, especially after 5 years flexible living as a university student. It can be a shock transitioning to inflexible full time work, 12+ hour days and limited time during the week. Being organised in the food department can seem impossible. But don’t give up. Food prepping like a pro is within your capabilities and takes much less time than you think.

Why should I food prep for the working week?

Food prepping enables you to plan and think about the nutrition you will need for your working week. Lawyers need their brains to be functioning optimally and bringing your own food to work is the best way to ensure what you are putting into your body will enable you to concentrate, identify errors and produce top quality work.

Food prepping will also save you time. In your 15 minute lunch break you won’t have to beat the crowds or stress about finding something mildly nutritious to eat. Instead you can go for a stress-busting power walk or keep on working so you can leave earlier that day.

Additionally, preparing your own food will save you serious amounts of money. There is also the personal satisfaction of finishing your food prep for the week and knowing at least something in your week is going to go to plan. Look at the Instagram hashtags #foodprepping  and #foodprep for inspiration and for an indication of the self-satisfaction involved.

Step 1: Make a food plan grid

Make a grid as follows:

	Sunday	Monday	Tuesday	Wednesday	Thursday	Friday
Breakfast
Lunch					Lunch – Pho with colleague
Dinner						Dinner at Veggie Bar
Snacks

I eat leftovers on the weekend to save on food wastage, so don’t plan for Saturdays in detail. As I food prep on Sunday night, I plan for dinner on Sunday. Identify the times you are planning to eat out. For example if you know on Friday night you are eating dinner with friends and on Thursday you are eating out in your lunch break block that out.

There are two kinds of food preppers in the world:

1.       Those who prepare and eat the same food every single week; and

2.       Those who like variety and could not eat roast vegetable and quinoa salad for more than two days in a row.

I fall into the later category and thrive off variety. If you are the type of person who does not need variety in their life, you can save a lot of time by cooking large quantities of the same dish. However, beware of food poisoning. Food should be consumed within 3 days of cooking (some food goes off even more quickly and should be consumed within 2 days of cooking). If you are cooking on Sunday, it would be unsafe to eat your food on Thursday and Friday. If you cook too many portions, freeze the leftover portions before they go off and use these ready to go freezer meals in times of need.

Step 2: Plan your meals and snacks

Cooks tend to either like following recipes or not. I highly recommend following recipes if you are starting out as a food prepper. Mastering a small number of simple recipes will drastically improve the quality and taste of your cooking and give you an idea of flavour and ingredient combinations that work together. Following recipes also enables you to identify and plan the quantities of ingredients you require. Get out your cookbooks or print off recipes you have found from the internet. Recipe selection is key. Make sure you select recipes that are quick to make and nutritious. You are not going to have time to slow cook an eight hour pork shoulder in the middle of the week. 

Here is a picture of cook books I have on high rotation at the moment. Remember to look at the quantities in your recipes. If the recipe feeds four, and you are just cooking for yourself, you should halve the recipe which will make you two meals (unless you don’t need variety in your life and want to eat four of the same meals or are planning to freeze some meals). Don’t be scared to use recipes you have found on the internet. I often use the recipes on movenourishbelieve.com, as they are quick and easy for lunch and the ingredients are often substitutable.

Don’t forget to plan all your meals, including breakfast. After you become more experienced at food prepping you will probably have a few standard breakfasts you rotate through as well as snacks, so you might not need to write it down, but for now, write down everything.

Don’t forget to plan your snacks. Snacks I commonly plan for and eat at work include:

1.       Two Crackers (Vita Weat 9 Grain 100% Natural or Real Foods Multigrain Cornthins) with 20g cheese (fetta, cottage cheese, ricotta, or cheddar) and vegetables;

2.       Small container (100g) of plain greek yoghurt (Chobani is my favourite) with sprinkle of homemade granola or topping of fruit;

3.       Banana and handful of natural almonds;

4.       Boiled egg and vegetable sticks;

5.       Handful of cherry tomatoes cut in half with fetta sprinkled on top;

6.       Chickpea bombs (chickpeas I have dry roasted in the oven with paprika to much them crunchy);

7.       Thick slices of cucumber with 100% nut butter on top;

8.       Homemade fruit salad.

This is what my completed grid looks like this week

	Sunday	Monday	Tuesday	Wednesday	Thursday	Friday
Breakfast		Yoghurt, HM granola, fruit	Yoghurt, HM granola, fruit	Yoghurt, HM granola, fruit	Yoghurt, HM granola, fruit	Yoghurt, HM granola, fruit
Lunch		Poached chicken, pomegranate and kale salad	Poached chicken, pomegranate and kale salad	Chickpea, roast vegetable and salad wrap	Lunch – Pho with colleague	Chickpea, roast vegetable and salad wrap
Dinner	Beef and veg stir fry with brown rice	Beef and veg stir fry with brown rice	Poached chicken and roast vegetables	Miso broth, veggies and egg	Miso broth, veggies and egg	Dinner at Veggie Bar
Snacks		Cucumber with peanut butter. Crackers, cheese and vegetable sticks.	Cucumber with peanut butter. Crackers, cheese and vegetable sticks.	Cucumber with peanut butter. Crackers, cheese and vegetable sticks.	Cucumber with peanut butter. Crackers, cheese and vegetable sticks.	Cucumber with peanut butter. Crackers, cheese and vegetable sticks.

It does not matter if your planning grid is a bit less formal. It does not matter if your planning grid does not look pretty. I usually do my planning grid by hand on a sticky note. Over time you may eliminate categories such as breakfast and snacks because you know what you are going to eat. Just don’t forget to continue to write the ingredients you need to buy on your shopping list.

When planning your meals, remember that meat quickly goes off, so plan vegetarian food for later in the week. You will see I am eating beef tonight and tomorrow night followed by chicken. I then eat vegetarian for the rest of the week. I usually eat fish quite a lot but because I had fish for almost every meal last week I am not having it this week. If you did buy fish, you would want to eat that on Sunday night, then the beef, then the chicken. If you don’t like cooking vegetarian you might have to eat meals you have pre-prepared and frozen in the second half of the week.

I eat breakfast at my desk when I get to work, and I love yoghurt with homemade granola (which I bake in massive batches) and seasonal fruit. If I feel like protein for breakfast I might bring a boiled egg and have it with toast.

You will also notice I am eating the same snacks every day this week. This works for me, as I bring all those ingredients to work for the week. Each week I change my snack. You can change up your snacks everyday, I just find it easier to keep it the same for the week. 

As you plan each meal or snack, write the ingredients you need on your shopping list for your supermarket shop. Make sure you assess the food currently in your fridge and cupboards to ensure you don’t buy anything you already have. This is my shopping list for the week.

If you are new to food prepping you may need to stock up on Tupperware. Remember Tupperware is your portion control. Buy smaller Tupperware containers than you think. Remember you are a lawyer and while you need carbohydrates, protein and fats to function, the quantity you need is significantly reduced by the fact you sit down all day. I strongly recommend portion control sized Tupperware containers. You don’t have to actually eat out of the Tupperware, and if you don’t like plastic invest in some glass containers. I also recommend keeping some nice plates, bowls and cutlery at work, as eating out of containers all the time gets boring quickly. Remember that if you are working 12+ hour days you will probably be eating dinner at work, so you might need more Tupperware to cater for this.  

Step 3: Go to the markets or supermarket

I strongly recommend shopping at your local food markets. This is easy for me because I live right next to the Queen Victoria Markets in Melbourne, but I acknowledge it is not a possibility for everyone. Even when I shop at the markets, I will still need to go to the supermarket to buy essentials like tins of chickpeas.

To try and entice you to shop at your local food markets more often, here is a picture of my food market shop this week.

 

Step 4: Prepare your food

What you prepare on Sunday night will depend on a number of factors including what type of food prepper you are. If you eat the same thing for lunch and dinner every day of the week you would cook your dish and put it in containers. Meals for Thursday and Friday will go in the freezer and take out as needed. Remember to thoroughly reheat food. I don’t food prep like this because I really enjoy food cooked fresh. So on Sunday I will cook lunch for the following two days and dinner for Sunday night and the following two days. My meals on Wednesday, Thursday and Friday are vegetarian, so I will do any meal preparation I can for that such as chopping the vegetables so they are ready to cook later in the week. Then when I do get home on those nights, I just have to assemble the meal which is relatively quick and sure beats a meal from the freezer. Good luck with your food prepping! May you never be stuck in a lunch time food court line again.

I am a lawyer not a nutritionist. This blog post is based solely on what has worked for me in my personal experience and is focused on how to prepare and organise food as opposed to what to eat. A nutritionist can provide you with advice on what to eat. 

ICAC v IBAC – the real differences between NSW and Victoria’s anti-corruption agencies

Introduction

New South Wales has the Independent Commission Against Corruption (ICAC). Victoria has the Independent Broad-based Anti-corruption Commission (IBAC). If you are an avid consumer of media you would have read that ICAC’s investigative powers are too broad and IBAC’s investigative powers are too limited. In Victoria in particular, IBAC’s powers have been a hot topic of early 2016, as the government introduced a Bill to amend the IBAC Act in early 2016.

The hype has led to comparisons with ICAC accompanied by some wildly inaccurate descriptions of ICAC’s powers. Don’t believe everything you read. In this blog post I go straight to the statute to explain the basic differences between ICAC and IBAC. Note that I only explain the basic differences, as a comprehensive comparison of the regimes would be a full time job. Feel free to share this post with any journalists you know to help keep information in the public domain correct.

Enabling statute

ICAC was established in 1988 by the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). IBAC was established in 2011 by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act), replacing the Office of Police Integrity.

Objects

The objects clause of a statute plays an important role in interpretation, as an interpretation that promotes the purpose or object of the Act is to be preferred over a construction that does not promote that purpose or object (s.33 Interpretation Act 1987 (NSW) and s.35(a) Interpretation of Legislation Act 1984 (Vic)).

The principal objects of the ICAC Act are stated in s.2A as creating ICAC as an independent and accountable body:

“(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b) to confer on the Commission special powers to inquire into allegations of corruption.”

The objects of the IBAC Act are contained in s.8 and are to:

“(a)     provide for the identification, investigation and exposure of—

                (i)     serious corrupt conduct; and

                (ii)     police personnel misconduct;                         

(b)     assist in the prevention of—

                (i)     corrupt conduct; and

                (ii)     police personnel misconduct;

(c)     facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community and the ways in which corrupt conduct and police personnel misconduct can be prevented;

(d)     assist in improving the capacity of the public sector to prevent corrupt conduct and police personnel misconduct;

(e)     provide for the IBAC to assess police personnel conduct.”

There are some immediately obvious differences in the objects of the two regimes:

·         the IBAC Act focuses on “serious corrupt conduct”, which is a narrower focus than that of the ICAC Act on “corrupt conduct”;

·         the IBAC Act specifically focuses on “police personnel misconduct” as well as and as a separate concept to “corrupt conduct”. This is because the regime incorporates the powers previously vested with the Victoria’s Office of Policy Integrity. The ICAC Act focuses on “corrupt conduct” and does not concern itself separately with “police personnel misconduct”, though police conduct that falls into the scope of “corrupt conduct” could be investigated by ICAC;

·         an object of the ICAC Act is to provide ICAC with powers to inquire into allegations of corrupt conduct. This is not an object of the IBAC Act.

Definition of “corrupt conduct”

The first limitation to note, present in both the ICAC Act and IBAC Act is that conduct will only be corrupt conduct if the conduct is sufficient to constitute a relevant offence. In the ICAC Act, the relevant offences are criminal offences, disciplinary offences, as well as conduct that could constitute reasonable grounds for terminating a public official, or could constitute a substantial breach of an applicable code of conduct by a Minister or Member of a House of Parliament. In the IBAC Act the relevant offences are more limited, being indictable offences against an Act, and three common law offences (only if committed in Victoria), being attempt to pervert the course of justice, bribery of a public official and perverting the course of justice. Already, the ICAC Act contains a broader definition of “corrupt conduct” merely by having a broader qualifying threshold of what will constitute a relevant offence.

After the conduct has met the relevant offence threshold, the conduct will be “corrupt conduct” if:

1.       In the ICAC Act (s.8), if it is:

·         Conduct which adversely or could adversely affect the honest or impartial exercise of official functions by any public official, group or body of public officials or any public authority (s.8(1)(a));

·         Conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions (s.8(1)(b));

·         Conduct of a public official or former public official that constitutes or involves a breach of public trust (s.8(1)(c));

·         Conduct of a public official or former public official involving the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person (s.8(1)(d));

·         Conduct of any person which adversely or could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the matters listed including official misconduct, bribery, blackmail, fraud, theft, and election bribery) (s.8(2)); and

·         Conduct that impairs, or that could impair, public confidence in public administration and which could involve one of a number of listed items including collusive tendering; defrauding the public revenue; and fraudulently obtaining or retaining employment or appointment as a public official (s.8(2A)).

2.       In the IBAC Act (s.4) , if it is:

·         Conduct of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body (s.4(1)(a));

·         Conduct of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body (s.4(1)(b));

·         Conduct of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust (s.4(1)(c)); or

·         Conduct of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person (s.4(1)(d)); or

·         Conduct that could constitute a conspiracy or an attempt to engage in any conduct referred to above.

In both the ICAC Act and the IBAC Act the definition of “corrupt conduct” includes conduct which occurs outside of Australia (s.8(5)) ICAC Act and s.4(2)(a) IBAC Act). The ICAC definition of “corrupt conduct” is broader in some respects, including by including conduct that “could adversely affect” as well as conduct that “adversely affects” (see for example s.8(1)(a) ICAC Act v s.4(1)(a) IBAC Act). Keep in mind these differences are exacerbated and when you consider IBAC can only investigate “serious corrupt conduct” (s.60(1)).

Pre-investigation powers

ICAC has the power under s.20A to conduct preliminary investigations. Examples of when ICAC might conduct a preliminary investigation include identifying conduct that might be made the subject of a more complete investigation. Section 20A was inserted into the ICAC Act in 1996 by the Police Legislation Amendment Act 1996 (NSW), which the Explanatory Memorandum explained “allows the Commission to make preliminary inquiries for the purpose of deciding whether to undertake an investigation”. Section 20A is worded “an investigation may be in the nature of a preliminary investigation”. This wording includes a “preliminary investigation” within the definition of an “investigation”, giving ICAC full investigative powers even when conducting a preliminary investigation. This includes powers to obtain information, documents, and enter public premises (s.21, 22, 23 ICAC Act). See also the definition of “corrupt conduct” in s.3, which provides the term includes “a preliminary investigation referred to in section 20A”.

IBAC is not prevented from conducting preliminary investigations, as conducting a preliminary investigation may be necessary for the performance of IBAC’s functions (s.16). However, for preliminary investigations, IBAC does not have the powers it does when conducting investigations, so essentially has no better powers than the average citizen in gathering information until the point in time in which IBAC decides to commence an investigation.

When can an investigation be initiated?

IBAC can commence an investigation once it is satisfied the conduct concerned may be “serious corrupt conduct” (s.60(2)). It can conduct an investigation on its own motion, or after receiving a complaint or notification about conduct (s.60(1)). Similarly, ICAC can commence an investigation on its own initiative, or after receiving a complaint, report or reference (s.20(1)) on satisfaction the conduct concerned may be “corrupt conduct”.

Investigative powers

When an investigation is on foot (under the ICAC Act this also includes preliminary investigations) ICAC’s investigative powers include the power to:

·         obtain information from public authorities and public officials by serving a notice in writing on a public authority or public official (s.21 ICAC Act);

·         obtain documents from any person by serving a notice in writing on that person (s.22); and

·         enter premises occupied or used by a public authority or public official, inspect documents or things in or on the premises and take copies of such documents (s.23).

In the course of an investigation ICAC can also conduct private “compulsory examinations” (s.30) or public inquiries (which are public but parts of which may be held in private) (s.31). ICAC has the power to summons any person to appear at a compulsory examination or a public inquiry (s.35).  IBAC has similar investigative powers to obtain information, obtain documents, enter premises and conduct examinations. Note that while ICAC’s examinations are generally held in public, IBAC’s examinations are to be held in private unless exceptional circumstances exist, it is in the public interest to hold a public examination and a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing (s.117 IBAC Act). As a result, IBAC’s investigations tend to be much more discrete than ICAC’s investigations.

Apart from the difference in examinations being held in public or private, the anti-corruption agencies have similar and significant investigative powers. These powers exceed powers given to state or federal police. The main difference between the two anti-corruption agencies in regards to investigative powers is when these powers may be used. As discussed above, the definition of “investigation” in the ICAC Act includes preliminary investigations, meaning ICAC can use its investigative powers in much wider circumstances than IBAC. IBAC cannot use its investigative powers for preliminary investigations.

What about conduct that occurred before the commencement of the regime?

Both Acts apply to conduct that occurred before the commencement of the Act (s.8(3) ICAC Act and s.11 IBAC Act), though there are limitations on investigating this conduct. These limitations are more pronounced for the Victorian regime, which only commenced in 2011. The NSW regime commenced in 1988, meaning most conduct investigated will have occurred after the commencement of the regime, so any sections limiting the investigation of conduct occurring prior to 1988 will only come into play in the infrequent circumstance conduct occurring prior to 1988 is investigated.

The IBAC Act significantly limits the situations in which conduct which occurred entirely before 2012 (the year s.11 was inserted) can be investigated. Firstly, an investigation must not be conducted where the conduct is trivial, the complaint is frivolous or vexatious, the complaint lacks substance or credibility, or the conduct occurred at too remote a time to justify investigation (s.60(4) IBAC Act). This seems reasonable. However, section 60(5) provides a difficult test to satisfy before conduct occurring entirely before 2012 can be investigated. Such conduct can only be investigated where:

·         It is in the public interest to investigate the conduct;

·         In all the circumstances it is appropriate for IBAC to investigate the conduct; and

·         In the case where an investigatory body has already investigated or decided not to investigate the conduct, there is reliable, substantial and highly probative evidence that was not considered by the investigatory body or reliable, substantial and highly probative evidence that the investigation or decision not to investigate was materially affected by error.

Oversight and supervision

The Victorian Inspectorate is responsible for monitoring IBAC’s compliance with the IBAC Act. IBAC’s performance is monitored and reviewed by the IBAC Parliamentary Committee. This Committee is also responsible for receiving and reviewing IBAC’s investigation reports. The Public Interest Monitor supervises IBAC applications for surveillance device warrants and telecommunications interception warrants. Similarly, in NSW a Parliamentary Joint Committee monitors and reviews ICAC’s work as well as to review ICAC’s investigation reports and annual reports (s.64 ICAC Act).

So is IBAC really much less powerful than ICAC?

Contrary to what some writers might have you think, IBAC is not toothless. While its focus on investigating “serious corrupt conduct” is more limited than ICAC’s ability to investigate “corrupt conduct”, IBAC still has a wide ambit to conduct investigations and capture Victoria’s serious corrupt conduct. With ICAC having focused on what appears to be less serious instances of corrupt conduct in the past, much can be said about focusing resources on “serious corrupt conduct”.  While definitional limitations mean more minor instances of corrupt conduct may stay hidden in Victoria for now, IBAC still has the power to expose serious instances of corrupt conduct which should have a deterrent effect on all types of corrupt conduct. 

Much can be said about the comparatively discrete nature of IBAC’s examinations, which must occur in private unless the threshold test is met. This reputational threshold test does not exist for ICAC, which is a concern given ICAC can investigate all levels of allegedly corrupt conduct, where severe reputational damage is possible even where a claim or evidence has not yet been substantiated.

IBAC is held back somewhat by its preliminary investigative powers. Although it can undertake a preliminary investigation, it cannot use its investigative powers when conducting the preliminary investigation, limiting the information IBAC can obtain to be satisfied conduct may be “serious corrupt conduct” to commence an investigation. Several problems also arise from IBAC’s youth, and the fact conduct occurring prior to 2012 must meet the high threshold test in s.60(5) before it can be investigated.  

Did this blog post interest you? Interested in anti-corruption Commissions and the powers of investigative and enforcement agencies? Keep your eye out for my next blog post, a case summary of the High Court’s recent decision in R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8.