IBAC CRIME COMMISSIONS AND ROYAL COMMISSIONS
You would be forgiven for becoming confused by the different references to ‘commissions’ given the range of different contexts in which they occur.
Currently, in Victoria, we have the permanent Independent Broad-based Anti-Corruption Commission (IBAC), which investigates allegations of corruption by people in public office, the Office of the Chief Examiner, which investigates crime and, the Royal Commission into Family Violence. At the federal level, there is the Royal Commission into Institutional Responses to Child Abuse, the Australian Crime Commission and the Royal Commission in relation to Union Corruption.
The distinction lies in whether it is a Commission or a Royal Commission. A Royal Commission is a public inquiry commenced by the Crown in relation to a particular issue, at the conclusion of which there are recommendations in relation to that issue. In other contexts, a Commission is a statutory body created by legislation for a particular purpose. However, its function is ongoing. IBAC and the Office of the Chief Examiner are examples of statutory Commissions in Victoria whose functions are ongoing.
Independent Broad-based Anti-Corruption Commission
IBAC was established by the Independent Broad-based Anti-Corruption Commission Act (2011), to investigate corrupt conduct by people in public office, such as police officers, judges, public sector employees and people in Government. It is overseen by a Joint Committee of the Victorian Parliament. IBAC receives complaints about corrupt conduct, assesses these complaints and then, if satisfied that there is serious corrupt conduct, may conduct an investigation. On 29 November 2015, the Victorian State Government announced that it will put before Parliament legislation designed to increase the powers available to IBAC to ‘probe politicians, judges and public servants’ in relation to allegations of misconduct in public office. The Auditor-General will also be empowered to examine public-private partnerships, whilst people complaining to the Ombudsman will be provided with more avenues to make these complaints. This means that the number of public officials subjected to scrutiny will be increased and, undoubtedly, the number of IBAC investigations will also.
IBAC has significant investigatory powers to enter, search and seize property, require police members to provide documentation and, to examine individuals in order to gather evidence. The rules of evidence do not apply to the examination and it can be conducted in any way that IBAC considers appropriate. These examinations are usually held in private unless IBAC opens the examinations to the public. A witness summons will be served upon a person who is to be examined by IBAC. You cannot refuse, as this is an offence. You have no right to silence or privilege against self-incrimination, as failure to answer a question for any reason is an offence. It is also an offence to disclose the existence of the summons to anyone, with some exceptions, one being your legal practitioner.
You are, however, entitled to be legally represented at the examination. Receiving a witness summons to attend IBAC for an examination can be very daunting, particularly if you are aware that the conduct alleged also involves criminality.
It is essential that you immediately contact a legal practitioner to seek advice, upon receipt of a summons.
A Royal Commission is an inquiry ordered by the Government, either state or federal, to investigate a particular issue and return recommendations. A Royal Commission can summons a witness to attend and consider submissions made by interested parties.
This firm has been involved in several Royal Commissions since 1976, most notably the Royal Commissions into the Painters and Dockers Union, The Wood Royal Commission into the NSW Police Force, The Cole Royal Commission into the Activities of the Australian Wheat Board and the Royal Commission into Trade Union Governance.
Each Royal Commission is governed by its terms of reference, practice guidelines and of course the legislation which created it. Which piece of legislation governs the Commission depends on whether it is a federal Royal Commission or a state one and, if it is a state one, which state. In Victoria, the power to hold a Royal Commission is governed by the Evidence (Miscellaneous Provisions) Act 1958. Robert Galbally of our office has appeared before numerous commissions and has extensive experience in representing clients summons before the same.
The Australian Crime Commission and Office of the Chief Examiner are independent statutory agencies, whose roles involve intelligence gathering and investigation into alleged organised crime. Both agencies have coercive powers, which can be used compel witnesses summonsed before them (upon threat of criminal prosecution punishable by a term of imprisonment) to provide evidence in relation to alleged organised crime activities.
Of particular concern to civil libertarians and criminal defence lawyers alike is the fact that a witness cannot claim a privilege against self-incrimination and, therefore, remain mute when questioned by either body. It can be used as a ‘star chamber’ to extract information out of individuals, against their own interests and in disregard for their safety.
Evidence gathered during witness examinations is shared with law enforcement and, ultimately, utilised in criminal prosecutions. ACC and OCE examinations are conducted in complete secrecy. Witnesses summonsed before either body are bound by a non-disclosure order, which prohibits them from discussing the proceedings or the fact that they were even summonsed, with anyone except their legal representatives. Legal representatives are similarly bound by the non-disclosure orders made by the Examiners.
The ACC and OCE also have the powers to conduct surveillance and obtain telephone intercept warrants.