ART has made another submission to the Victorian Government on the shortcomings of the Victorian Independent Broadbased Anticorruption Commission (IBAC). This submission addresses two reviews, one of IBAC and one of the office of the Auditor General. In it, ART points to the conflict of interest inherent in Members of Parliament making decisions about the body that oversees their conduct. (A fox in charge of the hen house scenario.) It also emphasises that in such a situation where conflict of interest is unavoidable, Parliamentarians must act in the public interest and must cultivate trust by open and transparent explanation of their decisions about Parliamentary scrutiny, and their rationale for making them.
For our other IBAC submissions, see also
The Victorian Independent Broad-Based Anti-Corruption Commission (IBAC): A Toothless tiger?
Do we have a corruption problem in Victoria?
Reform of government integrity systems – importance of community consultation?
The previous government suffered irreparable political damage as a result of its
• failure to honour its commitment to establish an anti-corruption body the equal of the New South Wales ICAC and
• the secretive way in which the decisions were made; the latter prevented the community playing a role and having any understanding as to why the commitment had not been honoured.
We cannot know all the causes of its failure but major factors that were present then are present now for the new government – as they would be for all governments.
1. Unavoidable conflicts of interest. The ultimate decision-makers on these issues (Members of Parliament, and their principal advisers, the public servants and personal staff) are unavoidably placed in a conflict of interest situation; for they are deciding what changes need to be made to address the weaknesses of what is a statutory watchdog over their conduct.
For those members of Parliament recently elected to Government, that challenge is heightened by the psychological reality that, when they made the relevant commitment they were in Opposition and, so, were “the hunters”. Elected to government, they are now the “hunted” and aware that, if only one of their colleagues is revealed by the watchdog to have been guilty of misconduct in public office, it may damage their party and, as a result, them.
2. Addressing the conflicts of interests. To effectively deal with such conflict of interest situations, at least two matters need to be addressed.
(a) Guidelines. This issue was addressed by the Hon. Fred Chaney. His advice was that to address the challenge of the conflicts of interest that all MPs bring to office, the critical question to be asked by a Member is – what is in the public interest? This advice is in fact supported by the long-standing fundamental ethical and common-law obligation of all holders of public office, now largely forgotten, the public office public trust principle; that, having been entrusted by the people with power to be exercised on their behalf, they must always, when exercising that power, place the public interest of the people ahead of their own and other personal interests. .
This principle needs to be in the consciousness of decision-makers placed in a conflict of interest position to maximise their ability to make the right decision.
(b) Process. If the decision making process is conflicted, to be trusted by the community it must at least be open and be seen to be and the reasons relied upon for the decision makers made public. The best way to ensure that that is achieved is to involve the community by ensuring it has the opportunity to participate in each stage of the reform process.
It is suggested that a failure to address the above realities was a major cause of the previous government failing to honour its election promise of a Victorian ICAC. In particular, most, if not all, of those making the design decisions would not have been fully conscious of the nature and extent of the conflicts of interest that they faced or their obligation to put the public interest ahead of their own or any other private interest.
In addition, in making particular judgements about the investigation threshold and the draconian powers that are needed for the investigation process, they were unlikely to have appreciated that those powers would be directed towards the conduct of holders of public office who, as our public trustees, are in any event under an obligation to account for their actions as our public trustees.
Finally, the previous government denied itself the scrutiny and contribution of the people for whose benefit the body was to be created – the people of Victoria.
That scrutiny and contribution is the ultimate safeguard. Involving the community is the best way to try to ensure that all relevant matters are identified and addressed by the decision makers, the public interest is placed first and the ultimate decision will be respected.
Tim Smith
Chair ART