Editorial
What Redlich didn’t get to say was too hard for the government to hear
Twelve years after Victoria finally got its much-anticipated anti-corruption commission, it is time for a comprehensive review of the lessons learnt.
But the prospects for any changes to the Independent Broad-based Anti-corruption Commission appear extremely limited under the Andrews government, judging by how the four Labor MPs on the eight-member parliamentary integrity and oversight committee quizzed former IBAC commissioner Robert Redlich on Monday.
Redlich, a former Court of Appeal judge, came armed with half a dozen suggestions for legislative changes to bolster the anti-corruption commission.
He managed to elucidate only one because most of the session was taken up by questions from Labor about staff redundancy payments, internal surveys about bullying, and other details that are rightly asked of IBAC’s chief executive.
By the end of it, Redlich was quietly seething. And no wonder. The terms under which IBAC operates need fundamental reshaping, and the commission needs more funding if it is to properly investigate serious misconduct by public officials and police in this state.
This is occurring as public confidence in government and public institutions generally continues to plunge, in part due to serious failures of governance, shifty practices by members of parliament or political operatives, and the odious politicisation of the public service which has curbed independent, objective advice from experienced officials.
Redlich says “we have an acute problem”, not just in Victoria. He has pointed to a “material decline” in integrity standards in the executive arm of government and a decline in accountability.
But, unlike anti-corruption commissions in NSW or Queensland, and unlike the new national anti-corruption commission, IBAC faces an absurd hurdle of Kafkaesque dimensions before it can even start an investigation into integrity issues in government.
To begin, IBAC must have reasonable grounds to suspect a crime has been committed. Which raises the obvious question: what constitutes a crime?
When it comes to government and matters of public office, that is a highly problematic issue. As Redlich has said repeatedly, the common law threshold for proving the offence of misconduct in public office has multiple elements to it, making it notoriously difficult to succeed before a court.
In his view, criminal law is not the appropriate measuring stick against which to gauge failures of integrity in public office.
Determining something to be a “crime” before it can be said to be “corrupt” stifles the role of the anti-corruption investigators.
A prime example of that conundrum was demonstrated in Operation Daintree, in which IBAC examined how the Andrews government awarded a grant to a union just ahead of a state election. IBAC took up the investigation, but only after first referring it to the Ombudsman.
IBAC’s subsequent report made no criminal referrals, but it was replete with instances of misconduct in office that fell short of the criminal standard needed to take a charge to court: failings of ministerial responsibility, instances of ministerial advisers blatantly interfering in proper processes and decision making, and public servants failing to discharge frank and fearless advice.
Former IBAC commissioner Robert Redlich.Credit: AAP
A simple amendment that would free up the anti-corruption commission to examine this kind of “soft corruption”, as Redlich calls it, would be to delete the legislative provision requiring IBAC to be sure the conduct being investigated “would constitute a relevant [criminal] offence”.
Redlich noted the Justice Department and IBAC officials had proffered “70 or 80” potential amendments to the government to improve IBAC over the past five years, “without any changes made”.
Something else not directly raised by Redlich, but which The Age has urged year after year, is particularly pertinent in light of IBAC’s Operation Sandon report. Property developers and their associates should be banned from making political donations in Victoria. This has been done in NSW, and it should be done here.
Our readers have repeatedly told us that integrity in government ranks as a critical issue in their voting intentions. It is a fundamental tenet that public confidence in government, in its honesty and reliability, bolsters public cohesion and the public’s compliance with laws and governmental regulations.
The Andrews government must stand tall and reinforce institutions such as IBAC that strengthen public confidence. If it is too gutless to do much more than buttress its own political fortunes, then it will ultimately fail on this important test.
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