Integrity commission could be left twiddling its thumbs
'Investigations of police misconduct alone might keep the commission busy.' Photo: Rob Homer
WITHIN the next couple of weeks the Baillieu government will introduce the final package of legislation needed to bring its long-overdue broad-based anti-corruption commission to life. That's the plan, at any rate.
That it has taken almost two years to even get to this point is a sign of just how naive — or misleading — the Coalition was in opposition when it promised the new integrity body would be up and running just six months after the election.
The tight time frame and bold promises about restoring integrity in Victoria must have seemed like good politics at the time. But somewhere between then and now political, legal and practical realities intervened. So much so that to now call the commission "broad-based" is probably stretching it, with the legal community asking questions about whether a vacuum has been left in Victoria's probity regime.
The term "broad-based" as applied to the new commission is only accurate in one sense: it will have the powers to investigate all public office holders, including politicians, their staff, judges, police, local government, government consultants, the auditor-general and even the governor.
But the commission's scope will be "narrow" in another sense: the legislation will only allow it to investigate allegations representing indictable offences if proven. Allegations must be serious enough that an accused person would have the right to a trial by jury.
The offence of "misconduct in public office" would not be included, despite being a serious common law crime, except in the case of police.
It is a high bar. So high you have to wonder if the new commission — which will cost about $170 million over four years — could be left twiddling its thumbs. The majority of public sector integrity issues that have arisen in Victoria in recent years probably wouldn't fit the definition.
Take the allegations that Frankston MP Geoff Shaw inappropriately used his parliamentary vehicle to profit his hardware business.
One theoretical charge against Shaw could be "obtaining financial advantage by deception", which under Section 82 of the Crimes Act carries a maximum penalty of 10 years' imprisonment. This could be enough to see Shaw expelled from Parliament (the minimum threshold is being convicted of a crime carrying a penalty of imprisonment for five years). Yet the rules governing the use of parliamentary vehicles are sufficiently grey that such allegations would probably be very difficult to prove.
What about the so-called Hotel Windsor planning debacle, which was specifically mentioned in the Coalition's 2010 election pitch to justify the need for the commission? At worst, it represented a deliberate and cynical ploy by the former Labor government to engage in a sham public consultation process to derail a potentially problematic planning application to develop the historic Hotel Windsor.
At best, it was a case of a poorly worded email accidentally sent to a journalist by an unfortunate staffer. It is extremely unlikely that any offence was committed, let alone an indictable offence.
What about allegations that Labor figures meddled in the affairs of the Brimbank Council for political purposes, including in the allocation of council resources to community and sporting clubs? The claims may have looked grubby at the time, but none of the allegations were proved. Again, had the Brimbank scandal happened today, it would be very unlikely to fall within the commission's jurisdiction.
Then there was a recent finding by the Ombudsman that public servants gave lucrative taxpayer-funded jobs to friends, associates and themselves at the state government's IT agency CenITex. Again, it is unclear whether this would fall within the narrow definition of corruption that applies to the commission. At the very least, it would need to be clear that the public servants involved acted deliberately to obtain a financial benefit or engaged in some other form of corruption including in the Crimes Act.
Again, this could be difficult to substantiate enough to warrant investigation by the commission.
There is one area where the new commission will have broader powers: it will be able to investigate serious misconduct by police, effectively subsuming the soon-to-be-defunct Office of Police Integrity.
This raises questions about why accusations of misconduct in public office are sufficiently serious to apply to police, but not, for example, to judges, politicians or chief executives of statutory authorities.
It might be that investigations of police misconduct alone keep the commission busy. But what of the other allegations of misconduct relating to other public office holders that do not fall within the commission's jurisdiction?
Lower level but still serious allegations of misconduct in public office will probably be passed down the line to the Ombudsman's office, which will no longer be responsible for administering the Whistleblowers Protection Act.
The Ombudsman powers are set to be effectively watered down.
There is a danger these changes will leave Victoria with a diminished rather than enhanced integrity regime. The voting public is justified in asking some serious questions.
Josh Gordon is state political editor.