Tuesday, 15 October 2013

To whom can Victorian public servants report corruption?

Recent changes to Victoria's integrity framework, including the establishment of several new integrity bodies and a system to monitor and oversee them, has changed the way in which to report allegations of corruption or improper conduct in the Victorian public sector.

Here’s a summary of some of the options available to a public servant or a member of the public who suspects improper conduct.  More information can be found from VGSO's publications, IBAC's website or the website of the body about which a complaint is to be made.

Type of conduct: ‘police personnel misconduct’

Body: the Independent Broad-based Anti-corruption Commission (IBAC)


IBAC started on 10 February 2013. It replaced the Office of Police Integrity and is the sole integrity agency with responsibility for dealing with matters relating to the misconduct of sworn and unsworn police members (described as 'police personnel conduct').

For a sworn officer, this includes:
  • conduct that constitutes an offence punishable by imprisonment;
  • conduct that is likely to bring the police force or police personnel into disrepute or diminish public confidence in them; and
  • disgraceful or improper conduct, whether in their official capacity or otherwise.

The definition of police personnel misconduct is narrower for an unsworn officer.  It does not include conduct which constitutes an offence punishable by imprisonment, or disgraceful or improper conduct.  Unsworn members include those members who assist in the administration of the police (i.e. VPS members employed by Victoria Police), police recruits and Protective Services Officers.

Type of conduct: ‘corrupt’ conduct of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC


IBAC can receive complaints about ‘corrupt conduct’ of ‘public officers’ and ‘public bodies’.

Public officers/bodies include public servants, departments and statutory authorities, local councils, Members of Parliament, public schools and universities, public hospitals, judges and magistrates, except those bodies covered by the Inspectorate, set out below.

‘Corrupt conduct’ of public officers/bodies includes:
  • dishonesty;
  • breach of public trust;
  • misuse of information; and
  • conspiracy to do any of the above acts.

The conduct must, if the facts were found proved beyond reasonable doubt at a trial, constitute either:
  • a statutory indictable offence; or
  • the common law offences of perverting, or attempting to pervert, the course of justice or bribery of a public official.

IBAC can investigate only where it is ‘reasonably satisfied’ that the corrupt conduct is ‘serious’.  It can refer complaints to the Ombudsman, Chief Commissioner of Police, Auditor-General, Victorian Inspectorate or WorkSafe for investigation if it thinks it more appropriate for that body to investigate it.

IBAC is not prevented from investigating a complaint simply because the subject of the complaint is no longer a public officer or body.

Type of conduct: ‘improper conduct’ of public officers/ bodies (other than the IBAC or the IBAC's officers)

Body: IBAC/ Protected Disclosure Coordinator within a Department or Administrative Office (when it concerns their employee)/ the Ombudsman


IBAC can receive ‘disclosures’ about ‘improper conduct’ and has responsibility for determining whether a disclosure is a protected disclosure and which body will investigate.

Improper conduct means ‘corrupt conduct’ (as above) or specified conduct that is outside 'corrupt conduct' which includes:
  • a substantial mismanagement of public resources, or
  • a substantial risk to public health or safety, or
  • a substantial risk to the environment.

The conduct must be serious enough that if proven it would constitute a criminal offence or reasonable grounds for dismissal.

‘Protected disclosures’ about employees of Departments or Administrative Offices can also be made to the Protected Disclosure Coordinator or the head of that Department or Administrative Office; or the supervisor of either the person making the disclosure (if they are a public servant) or the supervisor of the employee who is the subject of the disclosure.

The Ombudsman may also receive 'disclosures' about 'improper conduct', but only if the Ombudsman would be authorised to investigate the subject matter of the disclosure in the event it was determined by IBAC to be a protected disclosure.  If in doubt, a disclosure about improper conduct should be made to IBAC.

Protected disclosures about particular senior public servants including the Chief Commissioner of Police, the DPP and the Solicitor General can only be made to IBAC.  For a full summary, see VGSO’s previous newsletter on this topic.  The newsletter also sets out the whistleblower protections that come with making a ‘protected disclosure’.

 

Type of conduct: complaints about IBAC and its officers

Body: the Victorian Inspectorate (Inspectorate)


The Inspectorate started on 10 February 2013.  The Inspectorate can receive and investigate complaints about conduct of IBAC and its officers.

Type of conduct: complaints about the Chief Examiner, an Ombudsman officer or an officer of the Auditor-General's office

Body: IBAC or the Inspectorate


IBAC or the Inspectorate can receive and investigate complaints about conduct of the above officers.

Type of conduct: complaint about decisions and conduct under the Freedom of Information Act 1982 (Vic)

Body: Freedom of Information Commissioner


The Freedom of Information Commissioner started on 1 December 2012.  She deals with complaints about freedom of information (FOI) decisions.

With the establishment of the Commissioner, complaints about FOI decisions must be made to the FOI Commissioner, not the Ombudsman.  Complaints about the FOI Commissioner can be made to the Ombudsman or, if the complaint is about 'corrupt' conduct or 'improper' conduct, IBAC. 

Type of conduct: complaints about the performance of the duties and functions of the Inspectorate or the FOI Commissioner

Body: the Accountability and Oversight Committee of Parliament


Under the new integrity regime, Parliamentary committees have also been established to oversee a number of integrity bodies.  The Accountability and Oversight Committee is a joint investigatory committee established to monitor, review and report on the exercise of duties, powers and functions of the FOI Commissioner, the Ombudsman, and the Inspectorate (in respect of Ombudsman officers).

Type of conduct: complaints about IBAC or the Inspectorate

Body: the IBAC Committee of Parliament


The IBAC Committee is a joint investigatory committee established to monitor, review and report on the performance of duties and functions of IBAC and the Inspectorate (other than in respect of officers of the Ombudsman or the Auditor-General).

Type of conduct: complaints about the Auditor-General

Body: the Public Accounts and Estimates Committee of Parliament


As before, the Auditor- General remains subject to the Public Accounts and Estimates Committee, which now also has responsibility for oversight of the Inspectorate’s functions in respect of the officers of the Auditor-General.

Type of conduct: ‘protected disclosures’ about members of Parliament

Body: Speaker/ President


Disclosures about members of the Legislative Assembly must be made to the Speaker of the Legislative Assembly.  Disclosures about members of the Legislative Council must be made to the President of the Legislative Council.

For more information about public sector governance and integrity in the Victorian Public Sector, please contact:

Udara Jayasinghe
Principal Solicitor
t 9947 1445
udara.jayasinghe@vgso.vic.gov.au

Katie Miller
Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au

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