The Committee was required to:
1. Examine the current system for the oversight of police corruption and misconduct in Victoria, in particular the role of IBAC and the Victorian Inspectorate.
2. Identify and assess best‐practice models for the oversight of police.
3. Identify and review the main challenges to the effective oversight and investigation of complaints and disclosures about police in Victoria. This will involve an examination of the legal framework for the oversight of police in Victoria. The review will encompass both the legal responsibilities of those overseeing police as well as the perspectives and experiences of complainants, including marginalised Victorians.
4. Consider best‐practice strategies to improve the oversight and investigation of police corruption and misconduct and how they may be implemented in Victoria.The Committee notes
Police play a critical role in society, preventing and combating crime, enforcing the law and protecting, assisting and engaging with the community in a myriad of ways. The job of a police officer is a demanding one: they can be called on to make split‐second decisions in complex, stressful and dangerous circumstances. In order to do their jobs effectively, police officers have distinctive powers to arrest, detain, search and use force against individuals. However, the use of these powers is strictly governed by the law and by the understanding that effective and legitimate policing rests on the consent and confidence of the community—an understanding central to the values and commitments of Victoria Police. While the majority of Victoria Police officers do a fine job in serving the community, the maintenance of public confidence in police depends to a considerable degree on how officers who do the wrong thing are held accountable. In this regard, an effective system for handling complaints and disclosures (‘whistleblower’ complaints) is vital.
In 2016, the Independent Broad‐based Anti‐Corruption Commission Committee’s Strengthening Victoria’s integrity agencies? report identified that there were concerns among some stakeholders about the impartiality and effectiveness of the current police complaint‐handling and oversight systems in Victoria. Some stakeholders called for the creation of a new, independent body to receive, handle and investigate all complaints about police, instead of Victoria Police and IBAC, along the lines of the Office of the Police Ombudsman for Northern Ireland (PONI). ...
The Committee found that Victoria’s mixed civilian review system—in which the responsibility for handling and investigating complaints is shared between Victoria Police and IBAC as an independent oversight body—is a robust one that can, with improvement, meet the relevant best practice principles. The Committee does not therefore recommend the creation of a new independent body to receive, handle and investigate all complaints about police.
However, the Committee’s research, and evidence received during this Inquiry, demonstrate that the complaints and police oversight system needs significant improvement. The Committee has therefore made 69 recommendations to improve the transparency, impartiality, effectiveness and efficiency of the system.
In particular, the Committee considers that IBAC needs to give greater priority to its functions of handling, investigating and oversighting complaints about police. For example, IBAC investigates only approximately 2% of the allegations it determines warrant investigation, referring the rest to Victoria Police, including a range of serious police misconduct matters. In order to enhance the attention IBAC gives to serious police misconduct, and police oversight generally, the Committee has recommended the establishment of an adequately staffed and empowered Police Corruption and Misconduct Division within IBAC. Further, the Committee has recommended that, unless there are exceptional circumstances, IBAC, rather than Victoria Police, investigate serious police misconduct. In order to assist IBAC in carrying out these important functions, the Committee has recommended the conferral of selected additional investigative and oversight powers on it.
The Committee’s recommendations address the need for significant improvements in the complaints system across a wide range of functions and activities, including the receipt, handling, assessment, referral, investigation, review and oversight of complaints and disclosures about police. In particular, the Committee emphasises the importance of the accurate assessment of all complaints to ensure, for example, that serious police misconduct is not wrongly classified as a customer service issue or similar lower‐level concern.
Further, the Committee has made recommendations, from a complainant‐centred perspective, to improve the public information about the complaints system that is available (including high quality data on the operation of the system). It has also made recommendations to ensure that complainants, especially vulnerable complainants, are better communicated with and supported throughout the process. In addition, the Committee has identified a range of necessary improvements to ensure the impartiality and thoroughness of Victoria Police complaint investigations (particularly at the regional level). This includes the better management of issues such as officer complaint histories and conflicts of interest. Finally, the Committee has recommended that Victoria Police and IBAC make more use of conciliation as a way of effectively resolving complaints.The Griffith University and Transparency International A National Integrity Commission – Options for Australia report by A J Brown, Adam Graycar, Kym Kelly, Ken Coghill, Tim Prenzler and Janet Ransley comments
Since the 1990s, it has become clear that Australia’s federal public integrity system requires institutional strengthening to better deal with growing corruption risks. This paper presents three options for more coherent strengthening of Australia’s federal public integrity system, through extension, replacement and rationalisation of previous reforms:
1. An integrity and anti-corruption coordination council
2. An independent commission against corruption (ICAC)
3. A custom-built Commonwealth Integrity Commission model
These options range from minimalist to comprehensive and are not mutually exclusive. They are intended to stimulate a more concrete discussion on the direction, purpose, scope and shape of reform needed for Australia to regain its position ‘ahead of the curve’ in public integrity and anti-corruption.
Since 2012, Australia has slipped 8 points on Transparency International’s annual Corruption Perceptions Index (CPI). Transparency International Australia has assessed the trend as including falling confidence in the national approach to anti-corruption. Support for a new federal anti-corruption agency is also strong (67%), and spread across the community including all education levels.
The Senate Select Committee on a National Integrity Commission (2017) received evidence from relevant agencies that the current Commonwealth framework was a ‘robust, multifaceted’ approach which addressed integrity and anti-corruption ‘appropriately and effectively’, but unanimously rejected suggestions that there was no case for significant change. It found:
- The national integrity framework required ‘strengthening… to make it more coherent, comprehensive and accessible’ (4.140, Recommendation 1)
- ‘Careful consideration’ should be given to establishing a new or enlarged Commonwealth agency with ‘broad scope and jurisdiction to address integrity and corruption matters’ drawing on best State practice (4.142, 4.143, Recommendation 2) The Committee also recommended that this National Integrity System assessment be used to help reach a ‘conclusive’ view on the options (4.147, Recommendation 3).
In developing options for more detailed discussion, this paper builds on:
- Australia’s first national integrity system assessment (2001-05);
- ‘Principles for designing a National Integrity Commission’ (November 2017), developed by The Australia Institute’s National Integrity Committee.
2. Enhancing the Commonwealth integrity system
Taking a pro-integrity approach An important issue is how institutional strengthening can revive a sufficiently strong focus, in practice, on achieving pro-integrity outcomes traditionally supported by the Commonwealth. Historically, most anti-corruption commissions have some prointegrity functions, but these differ widely in approach and usually come a distant second behind corruption investigation in resource allocation.
Building on the Australian Commission for Law Enforcement Integrity
The principal option for institutional strengthening involves expanding or replacing the existing Australian Commission for Law Enforcement Integrity (ACLEI). To the extent institutional strengthening requires an anti-corruption agency, this need not be as politically contentious as often assumed.
Definitions and investigatory powers: key advantages
On most key issues, the existing legal powers of ACLEI already meet “best practice” criteria for the legal thresholds and powers of anti-corruption, including:
- Definition of corruption
- Independence
- Powers to make public reports and findings
- Strong investigative powers, including public hearings
ACLEI has power to compel witnesses, override the privilege against self-incrimination, and absolute discretion to conduct a hearing in such a manner as it sees fit, including in public, if it deems it appropriate and in the public interest.
3. Weaknesses in the integrity system
Australia faces a general need to ensure its federal public integrity system regains a reputation for being ‘ahead of the curve’, and address specific criticisms of the system. Logical questions identify seven major weaknesses:
3.1. No coordinated oversight of high-risk misconduct
Interrelated gaps in the Commonwealth integrity system include:
- lack of clear, reliable and comprehensive sector-wide measures of the incidence of confirmed or likely high-risk misconduct;
- lack of any comprehensive sector-wide system for ensuring suspected high-risk misconduct is reported to any central or independent agency; and
- lack of any system for ensuring high-risk misconduct is investigated to a consistent and acceptable standard, with appropriate outcomes and lessons learned.
Of Australia’s 1.9 million federal and state public servants, only the Commonwealth has major sections of its workforce not subject to a sector-wide system of independent oversight for corrupt and high-risk misconduct cases. There are no logistical justifications for the Commonwealth to settle for a fragmented and inadequate system, as Australia’s fourth largest employer – well capable of adjusting to a system of mandatory reporting and oversight.
3.2. Most strategic areas of corruption risk unsupervised
Some of the most strategic areas of corruption risk are without independent anticorruption supervision. For example law enforcement – the focus at ACLEI’s creation.
Of the 11 agencies engaged in the AFP Fraud & Anti-Corruption Centre, 7 are not subject to oversight by ACLEI. In procurement, the total value of Commonwealth contracts over $10,000 over the past five years was $251.9 billion. Only one of the top 10 procurement agencies (Home Affairs / Border Protection) lies in ACLEI’s jurisdiction. Defence, which alone spent $32.7 billion in 2016-17, is not.
3.3. No coherent system-wide corruption prevention framework
The Commonwealth integrity system shares this general weakness with many jurisdictions. But it is all the more pronounced if the Commonwealth is to sustain and strengthen its preferred ‘pro-integrity’ approach.
3.4. Inadequate support for parliamentary and ministerial standards
Strengthening the system as it relates to all public officials and programs is important, but the most crucial area for strengthening is at the parliamentary and political levels, where the public perceive the major – and growing – corruption problems.
Since 2016, the proportion of citizens perceiving that no federal parliamentarians are corrupt has fallen by two-thirds, while the proportion perceiving some or most to be corrupt, has risen from 71% to 80% -- the same or slightly worse than the average for State parliamentarians, and the worst for all three levels of government.
Measures for better dealing with parliamentary and ministerial integrity concerns and undue influence hinge on strengthened independent mechanisms, and other long overdue reforms.
3.5. Low and uncertain levels of resourcing
Combined national expenditure on core independent integrity agencies (anticorruption, Ombudsman and Auditor-General) by Australia amounts to only 0.069% of total public expenditure. By contrast, New Zealand’s expenditure is 0.111%. The Commonwealth’s is only 0.025%. The Commonwealth spends, at best, around a quarter of what the States typically spend; and in all, Australia’s public sector spends a third less than New Zealand, pro rata, on the same core public integrity functions. For Australia to reach the same level as New Zealand and most States, additional expenditure of approx. $295 million per annum would be required.
Also, the specific budget of AFP-led anti-corruption resources does not seem capable of being identified. Australia has committed under the UN Convention Against Corruption to ensuring it has ‘a body or bodies’ who are specialised and independent to combat corruption. If a country is unable to identify the budget behind this function, and that it is secure and stable, it is questionable whether it is satisfying its obligations.
3.6. Cross-jurisdictional challenges (public and private)
The Commonwealth can claim significant efforts and successes in many areas of interjurisdictional and cross-jurisdictional responsibility, but these have also often been less, and slower, and achieved with far less efficiency and agility, than they could and should have been – including with respect to:
- Responsible Business Conduct (inc. foreign bribery)
- Proceeds of corruption and unexplained wealth
- Corruption in real estate
- Anonymous shell companies
- National cooperation
- Leadership and coordination
3.7. Public accessibility and whistleblower support (public and private)
The Commonwealth integrity system lacks a clear overall gateway for stakeholders to access and navigate it, including, in particular, those organizational insiders willing to provide crucial information for integrity and anti-corruption purposes (whistleblowers). This weakness has been identified both by the Senate Select Committee and the Parliamentary Joint Committee on Corporations and Financial Services. Of six countries compared, only Australia’s public sector has no independent or specialist whistleblowing agency that investigates retaliation or is able to assist whistleblowers with accessing remedies.
The Parliamentary Joint Committee recommended a joint public-private whistleblower protection authority as part of a wholesale overhaul of existing law, including a new stand-alone private sector law. The provision of clearer gateway, receipt, advice, referral, and active and effective whistleblower protection functions are critical and interrelated needs.
4. Options for Australia
4.1. An Integrity and Anti-Corruption Coordination Council
This option is closest to the existing multi-agency system, and proposes strengthening by providing improved, more formalised coordination. Reporting to the Prime Minister or Attorney-General, this body would be focused on cooperation and bridging the gaps between existing agencies. It would provide stronger policy and operational coordination. It could have a statutory basis but would not necessarily require its own executive agency, but a policy and coordination secretariat in an existing agency Indicative resources would involve an annual budget of approx $6.5 million per annum. This would marginally lift Commonwealth expenditure on its core public integrity agencies from a notional 0.033% to 0.037%; and Australia’s total to 0.076%.
4.2. An Independent Commission Against Corruption
This option would involve a best-practice independent, broad-based anti-corruption commission for the Commonwealth, based on lessons from State experience. It would represent a major development to address several main gaps in the existing multiagency system, handling serious misconduct and corruption allegations from across the Commonwealth public sector (Australian Public Service as well as non-APS). It would have a prevention program also extending across the sector. To the extent possible under the Constitution, it would provide assurance to the judicial and parliamentary integrity systems by supporting the presiding officers of the federal courts and houses of parliament with the handling and management of corruption allegations.
The Commission would have a statutory basis, be subject to the oversight of the parliament via a multi-party committee supported by a parliamentary counsel and an inspector, and would not be subject to ministerial direction.
Previously, the Commonwealth Parliamentary Budget Office costed a proposal for an ICAC at $109 million over the forward estimate period based on the NSW ICAC. More recently, the Australian Labor Party cited the Parliamentary Budget Office as having costed the concept at $58.7 million over the forward estimates, or only marginally more than the existing budget of ACLEI. A more realistic forward estimates cost would be $190.4 million over 4 years, or $46.7 million per annum including $45.6 million for 190 FTEs and $2 million per annum capital costs. With a saving of $11.0 million from ACLEI’s existing budget, this option would require additional expenditure of $36.6 million per year.
This would lift Commonwealth expenditure from a notional 0.033% of total public expenditure to 0.045%; and Australia’s total expenditure to 0.081% -- still well short of any of the levels of investment of any Australian State or New Zealand.
4.3. A custom-built Commonwealth Integrity Commission model
This option would also involve a best-practice independent, broad-based public sector anti-corruption commission for the Commonwealth, including lessons from State experience, but with a broader range of functions relevant to the Commonwealth’s role and present needs. In addition, it would separately involve direct expansion of the parliamentary integrity system.
The Commission would build on ACLEI’s specialist expertise and strengths by taking a more sector-blind approach to corruption risk and prevention. It would include a strategic coordination function for major corruption risks across all sectors and jurisdictions, and lead a stronger and more embedded corruption prevention program. It would also fill the major gap in Commonwealth whistleblower protection support for the public and private sectors, by acting as the whistleblower protection authority. The Commission would represent a major development to help address all the main weaknesses of the existing multi-agency system. It would also involve new and amended legislation and mechanisms for parliamentary and ministerial standards, and electoral campaign regulation.
The Commonwealth Integrity Commission would have an estimated cost of $104.7 million per annum including $97.7 million for 407 FTEs and $7 million per annum capital costs. With a saving of $11.0 per million from ACLEI’s existing budget, this option would require additional Commonwealth expenditure of $93.7 million per year. $4.1 million per annum is estimated for upgrading the Independent Parliamentary Expenses Authority. $13.0 million per annum is estimated to support the regime for political donations and campaign regulation.
Together these components would require $110.8 million per year in both FTEs and capital costs. This would lift Commonwealth expenditure on core public integrity agencies from a notional 0.033% to 0.07%; and Australia’s total expenditure to 0.096% (approximately the level of the weakest Australian State, and approaching New Zealand).
5. Evaluation and conclusion
Option 1 (an Integrity and Anti-corruption Coordination Council) could be a worthwhile reform as a means of strengthening the existing multi-agency approach – if there were no major gaps in scope, mandate and capacity in the existing system, and if greater coordination and collaboration, alone, would allow the system to operate in a more effective way. Option 1 would also be the least expensive.
Option 2 (an Independent Commission Against Corruption based on State experience) would be a more worthwhile reform, assuming that its jurisdiction is broadbased, its resources are sufficient, and that mechanisms are developed for ensuring its role as a partner in the multi-agency system rather than a stand-alone solution. This option would address most weaknesses to at least some degree, and some to a high level. If properly resourced, it would require a significant investment by the Commonwealth.
Option 3 (a custom-built Commonwealth Integrity Commission) would provide a more comprehensive package of reforms. It assumes a strengthened integrity system should involve improved coordination and enhanced anti-corruption capacity, but also that a wider combination of reforms is needed to address the needs, strengths and weaknesses of the Commonwealth integrity system.
This option would also entail creation of a new commission, but with a different and wider configuration of functions than Option 2, taking into account the coordination needs addressed by Option 1 and further gaps at the Commonwealth level, such as whistleblowing support. It would entail separate reforms to support parliamentary and ministerial integrity All options would require investment. However, even the most expensive option would only barely bring the Commonwealth towards parity with the weakest contribution of the States, and of New Zealand. This level of investment is not only feasible but justified, rendering all options cheap compared with demonstrated need.
Conclusion: getting back ahead of the curve
All options highlight that the Commonwealth faces a strategic opportunity. The options show the choice between responses which continue to address challenges in isolation – and a wider view which addresses more problems and better stands the test of time. Despite the complexity, the time is now for government to chart how it will return from a position in which it is too often forced to look over its own shoulder for fear of unaddressed integrity risks. Instead, government should be able to proceed with confidence in the processes to resolve corruption concerns, and safe in the knowledge that robust systems are in place to minimize them in the first place.
This is not currently the case for the Commonwealth integrity system. A comprehensive approach provides the opportunity for Australia to get back ahead of the curve in the standards and strengths of its integrity system, and regain all the benefits of greater resilience, security, productivity and popular confidence.
