Improving Anti-Corruption Oversight: AB v IBAC and Beyond
11.6.2024
In February 2024, the High Court held in AB v IBAC [2024] HCA 10 that individuals facing an ‘adverse’ finding in a report issued by Victoria’s anti-corruption commission, the Independent Broad-Based Anti-Corruption Commission (‘IBAC’), must be given broad access to the evidentiary material that justified that finding. In response, commentators have worried that this kind of ruling would damage the public interest, slowing down the release of anti-corruption reports while individuals litigate their ability to adequately respond to allegations.
Understanding the implications of this judgment requires thinking more broadly about the role of Australian anti-corruption commissions. These commissions are created and governed by legislation; these laws give commissions broad coercive powers to investigate allegations of public corruption, misuse of public power, or maladministration. They have proliferated in recent decades with one operating in every Australian jurisdiction. The most recent example is the National Anti-Corruption Commission (‘NACC’), established under the National Anti-Corruption Commission Act 2022 (Cth).
These statutory anti-corruption commissions play two roles. First, they exercise criminal oversight powers by investigating and reporting on potentially criminal forms of public corruption by individuals. Because the exercise of these powers has potential reputational implications for the individuals under investigation, the legislation must afford these individuals the opportunity to respond to any adverse allegations. Second, these statutory bodies are increasingly exercising a form of systemic oversight. This kind of oversight seeks to combat ‘grey corruption’, the non-criminal misuse of public office or funds. In this role, anti-corruption commissions make recommendations about institutional changes that can improve the system of governance and attack grey corruption at its source.
We can draw lessons from AB v IBAC on how to improve both of these functions. First, the case shows that legislation conferring anti-corruption commissions with criminal oversight powers must clearly outline the information that must be given to individuals facing adverse findings. Vague statutory language risks undermining the individual right to procedural justice by providing insufficient information to respond. It also impacts the public interest by indirectly fostering costly and time-intensive litigation that slows down the release of anti-corruption reports.
Second, AB v IBAC also shows how systemic oversight can be improved. It shows that legislation should clarify that systemic oversight reporting should refrain from naming individuals and instead focus on the broader systemic issues that arise from particular allegations or misconduct. This will ensure that commissions’ special reports do not get caught up in litigation about the ability of the individual to adequately respond to adverse findings. Moreover, it will also recognise the importance of anti-corruption commissions in making proposals about the best way to improve the overall system of accountability and therefore change deeply entrenched cultures of grey corruption.
Criminal oversight
Anti-corruption commissions have traditionally investigated criminal forms of misconduct by public officials. We can see this role reflected in the names of these commissions, from the Crime and Corruption Commission in Queensland to Western Australia’s Corruption and Crime Commission. A classic example of this kind of investigation is the first enforcement action taken by the newly created NACC. On 28 March 2024, the NACC announced that a joint investigation with the Australian Federal Police had led to a charge against an employee of the Western Sydney Airport for allegedly soliciting a bribe of $200,000 during the procurement process for a contract to provide services at the airport.
In this role, anti-corruption commissions often release special reports that make adverse findings against individuals for corrupt conduct. These findings can lead to serious legal repercussions and individuals must be given enough information to adequately respond to these findings. Even if the individuals are never subject to criminal punishment, a finding that a person has engaged in criminal misconduct in public office can have significant reputational damage. In this context, legislation must require the commission to give the individual the necessary information to respond to the adverse allegations.
AB v IBAC sheds important light on this kind of oversight. In that case, after a lengthy investigation, IBAC made adverse findings against the petitioner (AB) and gave him a redacted version of its draft special report, requesting his response to these findings by 20 December 2021. AB’s solicitor requested additional materials for this response, demanding the transcripts of the examinations of other witnesses referred to in the draft report and copies of other documentary material relied upon to support the proposed adverse findings against AB. IBAC refused to provide this information and argued that it was only under a legislative obligation to provide the individual with the adverse comment or finding itself.
At issue in the case was the meaning of section 162(3) of Victoria’s IBAC Act, which states that an individual facing an adverse finding or comment must have a ‘reasonable opportunity’ to respond to ‘the adverse material’. The High Court interpreted this ambiguous provision against the background of the common law principles of natural justice. In so doing, it rejected IBAC’s narrower construction and held that ‘the adverse material’ necessarily includes any evidentiary material that justifies a ‘comment or ... opinion which is adverse to any person’. The High Court concluded that, at a minimum, natural justice requires the individual to have the opportunity to respond to the substance or ‘gravamen’ of the allegations, which includes a ‘full account of its essential content’ (at [32]). But the Court also stated that sometimes ‘more may be required’ (at [32]).
The Court’s broad, open-ended finding holds a lesson for improving the criminal oversight of anti-corruption commissions: it is important for legislation setting up these criminal oversight powers to include detailed provisions that specify the precise information that these commissions must give to individuals who face adverse findings. This information must go beyond just the allegations themselves; it also must enable the individual to understand why these adverse findings have been made. Vague statutory language is problematic in this area. Initially, it might be used by anti-corruption commissions to justify providing insufficient information to allow the individual to respond. This risks undermining procedural justice.
Moreover, vague language is likely to lead to uncertainty and drawn-out litigation that damages the public interest in swiftly exposing corrupt conduct. Without clearer statutory guidance, parties may seek to litigate, as they did in AB v IBAC, to determine what procedural justice requires in a particular context. This would undermine the public interest by delaying the release of IBAC reports. It might also chill IBAC from making adverse findings in the first place.
AB v IBAC therefore carries an important lesson for improving criminal oversight. To ensure that anti-corruption commissions can exercise their legal oversight effectively and fairly, Parliament must draft detailed provisions describing exactly what the commission must provide to the individual. These detailed provisions must expressly require anti-corruption commissions to provide the evidentiary basis for the adverse findings, but also place limits on this information to avoid requiring too much disclosure. This will ensure anti-corruption commissions have sufficient guidance and enable the timely release of reports by limiting litigation. It will also force a broader parliamentary discussion of the precise way to secure the individual right to procedural justice in this area.
Systemic oversight
As mentioned above, anti-corruption commissions do more than exercise criminal oversight. They are also seeking to target what the former IBAC Commissioner, Robert Redlich, has called ‘grey corruption.’ This kind of corruption involves the non-criminal misuse of public money or authority by public officials. Examples include branch stacking or jobs for mates—not technically illegal, but a clear misuse of public resources and office. The Australia Institute has found that this conduct is an increasing concern to Australians, and risks undermining trust in public governance.
Targeting grey corruption requires changes to the overall institutional system of oversight. Grey corruption often thrives in parliamentary systems where powerful executive officials operate with little accountability and transparency. In these contexts, the non-criminal misuse of public funds by members of the executive can become normalised as the inevitable product of ‘getting things done.’ Combatting this kind of corruption requires careful thought about how to design sensible institutional checks and balances that ensure that the executive branch’s use of public resources is performed in the public interest. Anti-corruption commissions can be well placed to be able to make these kinds of detailed recommendations, as they can use their broad investigative powers to gain in-depth understanding of precisely where these systems are lacking in effective accountability.
We have seen this kind of systemic oversight around Australia. In 2023, a report by Western Australia’s Crime and Corruption Commission uncovered serious mismanagement of public funds by officers of the Housing Authority, but did not find any illegal misconduct. The Commission described the need for more ‘checks and balances’ in the process of spending public money. In 2015, a report by the then newly-created South Australian Independent Commission Against Corruption headed by Bruce Lander noted there had been serious maladministration in the sale of government-owned land. This report included concrete recommendations for reform that ultimately improved South Australia’s land disposal practices and standards.
In perhaps the clearest example of systemic oversight, Victoria’s IBAC joined forces with the Victorian Ombudsman on ‘Operation Watts’: an investigation of allegations of branch stacking and the misuse of public funds by certain Members of Parliament (‘MPs’). The resulting special report (‘Watts Report’) mainly focused on the ‘unethical culture’ around the exercise of public power and the spending of public money. To overcome these problems, the report made 21 recommendations to improve Victoria’s system of anti-corruption oversight and accountability.
Key recommendations of the Watts Report included creating new independent accountability institutions, such as a Parliamentary Integrity Commission, to rejuvenate responsible government by rebuilding Parliament as a key oversight and anti-corruption institution. Other key recommendations focussed on changing the composition of existing parliamentary integrity and oversight committees to ensure that they are no longer dominated by the party that forms the executive government. These recommendations sought to reinvigorate Australia’s unique form of political constitutionalism, one that is grounded in independent scrutiny of the government. The Watts Report demonstrates the important role that anti-corruption commissions can play in recommending systemic changes to the culture of governance that normalises the misuse of public resources.
Legislation establishing anti-corruption commissions can and should expressly support this systemic role by specifically giving commissions the power to issue special reports on systemic problems. These provisions can make clear that a commission serves as an expert advisory body in this role—one that makes non-binding recommendations that are grounded on close study of a particular set of allegations about grey corruption. This could avoid the problems that arose in AB v IBAC by disentangling systemic oversight from criminal oversight and its focus on individual conduct. This should ensure that commissions’ special reports dealing with systemic issues are released as soon as they are finished (and not delayed by litigation on the requirements of procedural justice).
Legislative recognition of systemic oversight has additional advantages. First, it can help stop this form of oversight from being curtailed. South Australia shows why this is important. After South Australia’s then newly-created Independent Commission Against Corruption released a series of reports exposing systemic corruption in South Australian governance, the Parliament voted to strip the Commission of many of its systemic oversight powers. These legislative changes were justified by one MP as making it an effective ‘corruption-busting tool.’ The real intent was clear: to tell the Commission to ‘stay in its lane’ and to focus largely on criminal oversight.
Second, legislative recognition of commissions’ role in systemic oversight can help refute attempts by politicians to dismiss this kind of systemic reporting as purely educational. It can therefore help to place political pressure on the government to implement recommended changes. In Victoria, the government has committed to implementing all of the recommendations of the Watts Report. But the devil will be in the details of the Victorian government’s response: will they really take the difficult steps of making systemic changes that ultimately subject the executive to more searching oversight? Only continued political pressure on the government will ensure that the legislated changes actually respond to these imperatives. Legislative recognition of the role of anti-corruption commissions in systemic oversight can help to ensure proper and timely implementation of their recommendations.
Conclusion
The High Court’s recent judgment in AB v IBAC thus contains two important lessons for improving anti-corruption oversight. First, it shows the importance of more clearly legislating the procedural protections for individuals when these commissions exercise their criminal oversight. Second, and more broadly, it shows why legislation should disentangle this criminal oversight role from the commissions’ systemic oversight role. This will help to support anti-corruption commissions to do more than just punish individuals for bad conduct; it will also allow them to more effectively pre-empt misconduct in public office by suggesting systemic changes that can change a culture of governance that too often enables the misuse of public power. Taken together, this will ensure that anti-corruption commissions can protect one of Australia’s most precious commodities: public trust in government.
William Partlett is an Associate Professor, Melbourne Law School and Fellow at the Centre for Public Integrity.
Suggested citation: William Partlett, ‘Improving Anti-Corruption Oversight: AB v IBAC and Beyond’ (11 June 2024) <https://www.auspublaw.org/blog/2024/6/improving-anti-corruption-oversight-ab-v-ibac-and-beyond>