Law Grad in Pink is a blog written by a law graduate in Adelaide for law graduates everywhere.

Wednesday, 6 April 2016

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

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.

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.


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