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Royce Millar
Age Investigative Unit
Exclusive
Key integrity advisers to the Baillieu/Napthine government have rejected as defective proposed changes to Victoria's anti-corruption commission, calling instead on all parties to commit to a tough, NSW-style corruption-busting model ahead of the November election.
Former Supreme Court Judge Stephen Charles QC has completed the first expert assessment of proposed amendments to the Independent Broad-Based Anti-Corruption Commission (IBAC), due for debate in this parliament's final sitting days next week.
In opposition in 2010 the Coalition promised an IBAC modelled on NSW's ICAC but baulked in government, instead establishing a $175 million commission hamstrung by a strict definition of corruption, and high threshold for investigations.
"Even if the legislation is amended as proposed, it will still fall far short of the ICAC model," concludes Mr Charles. "The IBAC will continue to be inadequately armed to expose corruption and severely constrained in its efforts."
Mr Charles' analysis is attached to a letter to all parties by Tim Smith QC, on behalf of the bipartisan integrity lobby, the Accountability Roundtable.
Both men were part of a small team of experts that in 2011 advised the Baillieu government in the establishment of the original IBAC.
But they were later to join a chorus of lawyers and integrity commentators bitterly disappointed by the Baillieu government's failure to honour its much-vaunted crackdown on corruption.
Fairfax Media first revealed major flaws in the commission in March 2012 with another disillusioned member of the Coalition's advisory team, Douglas Meagher QC, calling on the government to abandon the $175 million body, a waste of public money.
Following IBAC's own call for greater power earlier this year, and the contrast of repeated examples of the corruption-fighting potency of the NSW ICAC, the Napthine government tabled amendments in September.
In his assessment of the Napthine amendments Mr Charles welcomes the addition of misconduct in public office as an offence.
However, he says the other major change – allowing IBAC to conduct preliminary investigations to determine whether matters warrant full examination – is undermined by IBAC being unable to use coercive powers including bugging phones, searching premises and seizing computers during those preliminary inquiries.
"IBAC should be entitled to to use its full coercive powers in conducting preliminary investigations," Mr Charles told The Age. "It will be unable to detect and expose hidden corruption without them."
Such powers have been crucial to the success of ICAC cases in NSW, including Operation Jasper which unearthed the involvement of the Obeid family in mining licences in the Byong Valley. Without them, Mr Charles told The Age, it is unlikely Operation Jasper would have proceeded.
Under the proposed amendments the much-criticised threshold for a full investigation remains unchanged. Where ICAC is free to investigate just about anything it wants, even follow a hunch or a suspicion. IBAC Act is prevented from fully investigating unless it has facts which, if proved at trial beyond reasonable doubt, would constitute an indictable offence.
"This threshold also is completely inappropriate if the IBAC is to have the ability to investigate corruption," says Mr Charles in his written analysis.
He calls on all parties to back further amendments to IBAC including:
Broadening of the definition of "corrupt conduct" with the IBAC Commissioner given case by case discretion over the level of misconduct worthy of investigation
IBAC be entitled to use its full coercive powers during preliminary investigations
Removal of the "indictable offence" threshold
The Accountability Roundtable has written to all major parties seeking a commitment to "provide the people of Victoria with an IBAC properly modelled on the NSW ICAC, so that it is able to function effectively in fighting and exposing corruption".
On Friday it was unclear if there would be sufficient time next week for the parliament to debate and vote on the tabled IBAC amendments.