Colleen Lewis argues in The Age that the Victorian government amendments to IBAC let Victorians down. This is so because IBAC will still fail to carry out the basic work of Anti-Corruption Commissions – to “shine the accountability spotlight on the sinister, secretive corners and crevices where corruption irrefutably lurks, and to do this unimpeded by hampering legislation.”
Instead, “Victoria’s anti-corruption body will be required to provide to the court and suspect(s) all preliminary information, and to present a case that explains why it wishes to proceed to full investigation. This means those under investigation for suspected corruption will have access to detailed information gleaned from IBAC’s initial inquiries and the reasons an investigation is being conducted. The result is obvious: suspects will be provided with an opportunity to hide and/or destroy incriminating evidence.”
Read more: http://www.theage.com.au/comment/anticorruption-bill-disappoints-20160131-gmhwrm.html#ixzz40a16AIwl
Andrews’ anti-corruption bill disappoints
The trouble is, there could be an escape route for the corrupt.
Date: February 1, 2016
Colleen Lewis
The name given to a parliamentary bill is designed by governments to convey a particular message. The Andrews government’s Integrity and Accountability Legislation Amendment (A Stronger System) Bill 2015 is no exception.
In fairness to Premier Daniel Andrews, the title of this particular bill reflects what it is delivering: a stronger integrity system. But unfortunately, it falls short of a bill that could have been introduced and confidently titled Integrity and Accountability Legislation Amendment (The Strongest Possible System) Bill 2015.
Surely, this can only be an unintended consequence of the ‘Stronger System’ Bill – or is it?
Given the history of the anti-corruption policy process in Victoria, it is not surprising that the bill is proposing only a stronger rather than the strongest possible system. Nevertheless, it is profoundly disappointing, especially in relation to the Independent Broad-based Anti-corruption Commission (IBAC).
The Bracks and Brumby Labor governments failed to establish an effective anti-corruption body. The Baillieu Coalition in opposition made a solemn pre-election promise to establish an IBAC closely resembling the Independent Commission Against Corruption (ICAC) in NSW – and then went on to break that promise once elected to government. The Andrews government has honoured the letter of its election promise in relation to IBAC, but it continues to unnecessarily restrain the operations of the anti-corruption body. In doing so it, like the Bracks, Brumby and Baillieu governments, is letting Victorians down.
This is demonstrated by the “Stronger System” legislation about to come before the Victorian parliament, for it establishes barriers that are likely to delay and hinder IBAC’s ability to move from preliminary to full investigation.
It does this by creating a situation where people under investigation will be able to approach a court to have IBAC’s preliminary inquiry stopped. If that happens, Victoria’s anti-corruption body will be required to provide to the court and suspect(s) all preliminary information, and to present a case that explains why it wishes to proceed to full investigation. This means those under investigation for suspected corruption will have access to detailed information gleaned from IBAC’s initial inquiries and the reasons an investigation is being conducted. The result is obvious: suspects will be provided with an opportunity to hide and/or destroy incriminating evidence.
Surely, this can only be an unintended consequence of the “Stronger System” Bill – or is it? I pose the question because both major parties have failed to give Victorians an anti-corruption body that is capable of doing what anti-corruption bodies exist to do, which is shine the accountability spotlight on the sinister, secretive corners and crevices where corruption irrefutably lurks, and to do this unimpeded by hampering legislation.
One of the more plausible explanations for successive governments’ reluctance to establish a Victorian anti-corruption body with the broad powers of NSW’s ICAC relates to the structural tensions that arise between governments and powerful anti-corruption bodies.
The architect of NSW’s ICAC, Gary Sturgess, explains that governments have “mixed feelings” about independent anti-corruption bodies and to a degree “fear” them. This helps explain why governments often fail to give such bodies the suite of powers they require to be truly effective. Even when they are moving in that direction, as no doubt Andrews will say he is in respect to IBAC, governments often incrementally concede to anti-corruption bodies the powers they require to do their job, rather than act decisively from the outset. The piecemeal approach not only wastes taxpayers’ money but creates an impression that those elected to govern on behalf of the people are engaged in symbolic politics when it comes to truly effective anti-corruption measures.
Governments know that when they establish an independent statutory authority such as an anti-corruption commission, they will have limited control over the organisation because it reports to the parliament and not to a minister. As such, anti-corruption agencies largely bypass the authority and influence of the executive. Compounding the tension, this independence creates the reality that anti-corruption bodies are often the bearers of bad news for government departments and ministers that are, theoretically at least, responsible for them through the doctrine of ministerial responsibility. They can also be of concern to individual MPs and the political party to which they belong, should they reveal corrupt conduct by parliamentarians.
This creates a conflict-of-interest challenge for governments. For electoral purposes they do not want to be seen as emasculating the anti-corruption process – but nor do they want its independent reach to be too broad or deep.
Fortunately for the electorate, the challenge is solvable. The solution lies in the public-interest principle. Put simply, this principle dictates that parliamentarians of all political persuasions must always put the public interest before personal interests, the interests of the bureaucracy and the interests of the political party to which they belong. One way of demonstrating they are capable of doing this is to ensure that anti-corruption bodies are given the powers they require to do their taxpayer-funded role effectively.
Colleen Lewis is an adjunct professor with the National Centre of Australian Studies at Monash University and lead editor of the recently published book Parliamentarians’ Professional Development.
Read more: http://www.theage.com.au/comment/anticorruption-bill-disappoints-20160131-gmhwrm.html#ixzz40a4BRgrR
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