Friday 13 May 2016

What to do if you are contacted by IBAC

Since being established in 2012, the Independent Broad-based Anti-corruption Commission's (IBAC) operations are in full swing. It has conducted a range of both private and public investigations. VGSO has advised the State on each of the first three public examinations by IBAC:

  • 'Operation Fitzroy' into allegations of serious corruption in the former Department of Transport and Public Transport Victoria;
  • 'Operation Ord' into alleged serious corruption at the Department of Education and Training; and
  • 'Operation Dunham' into the Department of Education and Training’s $180 million Ultranet project.
In the course of conducting its investigations, IBAC may, among other things, issue a witness summons or a confidentiality notice. As a public servant receiving such documents from IBAC, what should you do?

I have received a witness summons. What do I do?

A witness summons from IBAC may require you to attend and give evidence at an examination and/or produce documents or other things to IBAC. The examination may be conducted in private or public, or both.

If the summons is for an examination, the summons will state:
  • your rights and obligations in respect of the examination;
  • whether the examination will be held in private or in public; and
  • the matters you will be asked to discuss at the examination.
If you receive a witness summons:
  • You must comply with the summons. It is an offence to fail, without reasonable excuse, to comply with a summons.
  • You may seek legal advice in relation to the summons without breaching any confidentiality notice that may accompany the summons (refer below).
  • You may bring a lawyer to the examination. A lawyer can advise you during the examination and assist you to claim any rights and protections. A lawyer cannot answer questions on your behalf.
  • You may discuss your examination and the IBAC investigation with other persons, except where:
    • you receive a confidentiality notice (refer below);
    • you receive a draft report;
    • ordinary obligations as a public sector employee prevent you from disclosing the information; or
    • the other person may also be called as a witness. Discussing your evidence with a potential witness may compromise the integrity of your answers to IBAC and the integrity of IBAC's investigation. It is an offence to hinder an investigation, including by colluding with other witnesses.

I have received a confidentiality notice. What do I do?

A confidentiality notice is a notice that requires you not to disclose the matters specified in the notice. You may receive a confidentiality notice if IBAC determines that the disclosure of certain matters would be likely to prejudice IBAC's investigation or a person's safety, reputation or fair trial. In our experience, confidentiality notices are not uncommon during an IBAC investigation.

If you receive a confidentiality notice:
  • You cannot discuss with anyone the matters specified in the notice, unless IBAC authorises this, or it is necessary to comply with the notice, or to obtain legal advice. It is an offence not to comply with a confidentiality notice.
  • You may only disclose to another person a matter specified in the notice:
    • if you are directed or authorised by IBAC to do so;
    • if it is necessary in order to obtain any information, document or other thing that you need to comply with a witness summons or confidentiality notice; or
    • subject to some restrictions, to obtain legal advice or representation in relation to a witness summons or confidentiality notice.

In such circumstances, you will need to provide the other person with a copy of the confidentiality notice at the time of disclosure. They will also need to comply with the confidentiality notice.

  • You may also disclose a matter specified in the notice if it has already been lawfully made public, either in an IBAC report or otherwise.

If you are an employee of the Victorian Government and have received a witness summons or confidentiality notice from IBAC and would like legal advice about your rights and obligations, contact your in house legal department in the first instance.

Eliza Bergin
Principal Solicitor
8684 0267

Greg Elms
Managing Principal Solicitor
8684 0414

Katie Miller
Innovation Counsel
8684 0268

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