It is the harsh reality of politics that when Victoria’s Independent Broad-based Anti-corruption Commission finds fault with government, its commissioner needs to be able and prepared to meet such situations, and that they have the skills and standing required to manage such challenges.
Last week, The Age reported that Victoria Elliott had been chosen as the new head of IBAC. Though Elliott’s CV notes she previously worked for IBAC, the Office of Police Integrity and the Public Interest Monitor, she does not have judicial experience, is not a barrister, and is not well known in legal or political circles.
To be eligible for the role, the IBAC Act states a person must be a judge of the High Court, the Federal Court, or a Supreme Court, or be qualified for such an appointment. Through the Victorian Constitution, this has been extended to include a person who has been practising law for at least five years.
The first two Victorian IBAC Commissioners were Stephen O’Bryan QC, and the Hon Robert Redlich QC, both lawyers of long and distinguished experience in practice. Redlich’s appointment in 2017 was announced with some fanfare, and he was described by the government as “one of Victoria’s most eminent and well-respected jurists”.
In NSW, where the Independent Commission Against Corruption served as a model for IBAC, current and previous commissioners include those with long and distinguished legal careers. Furthermore, the recently appointed head of the National Anti-Corruption Committee (NACC) is a well-credentialed former judge, reflecting the federal government’s desire to have credibility from the outset.
Though there are plenty of retired judges and very senior and experienced legal practitioners, of
both sexes, who would be eligible for the appointment, it is believed that no such person was on the shortlist for consideration. What’s more, the advertisement for the role called for a leader with “demonstrated experience and exceptional capability in public sector leadership and management,” which would exclude most judges and senior barristers from consideration.
In stark contrast to the NACC, Elliott’s appointment suggests the government led by Premier Jacinta Allan is unwilling to appoint someone with the experience and gravitas to truly hold the government to account.
Victoria’s integrity system consists of IBAC, the Ombudsman and the Auditor-General’s Office. Its purpose is to ensure Victorians can have full confidence in the state’s public sector. With a staff of nearly 200 employees and a remit covering the entire Victorian public sector, including independent oversight of Victoria Police, the IBAC Commissioner has a wide variety of critically important powers. This includes whether to conduct an investigation; whether to conduct a hearing in an investigation; whether to conduct a public hearing; whether to conduct an investigation into the conduct of a Supreme Court judge; whether to refer a complaint to the Judicial Commission; whether to enter police premises or seize documents, or to require police to provide information, to name only a few of the Commissioner’s complex and difficult functions.
The Commissioner, as head of IBAC, will preside over hearings and public hearings. To do so requires expertise in the trial process and an understanding of the difficult procedural and evidentiary decisions that must frequently be made, including rulings on questions of privilege, and the use of the contempt powers that can be exercised.
For these reasons alone, it is obvious why the IBAC Act provides that commissioner appointees should have senior judicial experience or have been qualified for judicial appointment.
Furthermore, as head of IBAC, that person must have the experience, standing, knowledge and gravitas to be able to deal on an equal footing with the premier, ministers of state, heads of departments, senior judges and business figures who may be required to appear, no doubt with powerful legal representation, before the commissioner in public or private hearings. The commissioner also needs to be able to deal with the police chief commissioner and seasoned senior Victoria Police command.
The latter years of the Andrews government were strongly criticised because of the premier’s disdainful and contemptuous treatment of both the IBAC Commissioner and the Ombudsman, and his disregard for IBAC reports which showed a lack of integrity and misbehaviour in his method of government.
Several IBAC reports demonstrated an unhealthy increasing centralisation of government, that control being exercised through a vast body of ministerial advisers, reports which the premier attempted to dismiss as irrelevant or merely “educational”.
The well-recognised need for the IBAC legislation to be substantially strengthened in several key areas only serves to underline the need for a new head with the necessary independence and standing to continue to push for such reform.
Recent experience of the serious decline in integrity in Victorian government, demonstrated in IBAC reports and otherwise, underlines the need for a strong, experienced Commissioner of appropriate drive and standing.
It is important that this vital appointment is seen to be impartial, based on well-recognised merit, and not politicised, to ensure the Victorian community can have complete confidence in the integrity of the public sector, including in particular its anti-corruption and police oversight agency.
It appears the Victorian government has chosen otherwise.
Written by Stephen Charles KC. Originally published in the Age on October 18.
Stephen Charles KC is a former Court of Appeal judge. He is a board member of the Accountability Round Table and the Centre for Public Integrity.