Independent Broad-Based Anti-Corruption Commission Act 2011

The main purpose of this Act is to establish the Independent Broad-based Anti-corruption Commission.

This Act also amends the Parliamentary Committees Act 2003 to constitute a Joint House Committee of the Parliament of Victoria to oversee the Independent Broad-based Anti‑corruption Commission.

Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

If a provision of this Act does not come into operation before 1 July 2012, it comes into operation on that day.

For the purposes of this Act, corrupt conduct means conduct—

of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or

of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or

of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or

of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or

of a person (the first person) intended to adversely affect the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body and result in the first person or an associate of the first person obtaining—

a licence, permit, approval, authority or other entitlement under any Act or subordinate instrument; or

an appointment to a statutory office or as a member of the board of any public body under any Act or subordinate instrument; or

a financial benefit or real or personal property; or

any other direct or indirect benefit, including any monetary or proprietary gain—

that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c), (d) or (da)—

For the purposes of this Act, in determining whether conduct would constitute an offence, the IBAC may assume that the required state of mind to commit the offence can be proven.

For the purposes of this Act, in determining whether conduct would constitute a serious disciplinary matter, the IBAC may assume that any state of mind required to be established for the conduct to be a serious disciplinary matter can be established.

Conduct may be corrupt conduct for the purposes of this Act if—

all or any part of the conduct occurs outside Victoria, including outside Australia; and

the conduct would be corrupt conduct if it occurred in Victoria.

For the purposes of subsection (1)(da), the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body may be adversely affected notwithstanding that the public officer or public body does not engage in any corrupt conduct or other misconduct in performing or exercising those functions or powers.

For the purposes of subsection (1)(da), an associate of a first person is—

a person or entity who has an agreement, arrangement or understanding with the first person or holds any relevant financial interest in any business of the first person;

if the first person is a natural person, a person who is a relative of the first person;

if the first person is a body corporate—

an entity of whom the first person is an associate within the meaning of section 11 of the Corporations Act; or

an employee or officer of a related body corporate within the meaning of the Corporations Act to the first person.

For the purposes of subsection (2B)—

the spouse or domestic partner of the first person;

a parent, son, daughter, brother, sister, aunt, uncle, grandparent, cousin, nephew or niece of the first person;

a step-father, step-mother, legal guardian, step-son, step-daughter, step‑brother, step-sister, father‑in‑law, mother-in-law, son‑in-law, daughter-in-law, brother-in-law or sister-in-law of the first person;

a parent, son, daughter, brother, sister, aunt, uncle, grandparent, cousin, nephew or niece of the spouse or domestic partner of the first person;

a step-father, step-mother, legal guardian, step-son, step-daughter, step‑brother, step-sister, father‑in‑law, mother-in-law, son‑in-law, daughter-in‑law, brother-in-law or sister-in-law of the spouse or domestic partner of the first person;

To avoid doubt, for the purposes of subsection (1)(da), conduct referred to in that subsection may be corrupt conduct even if anything referred to in subsection (1)(da)(i), (ii), (iii) or (iv) is not in fact obtained as a result of the conduct.

This Act does not apply to any conduct of any person that can be considered by the Court of Disputed Returns in proceedings in relation to a petition under Part 8 of the Electoral Act 2002.

in relation to a public officer who is a police officer or protective services officer—

an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a police officer or protective services officer; or

conduct which constitutes an offence punishable by imprisonment; or

conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);

in relation to a public officer who is a Victoria Police employee or police recruit—

an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a Victoria Police employee or police recruit; or

conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it;

a complaint made to the IBAC under section 167 of the Victoria Police Act 2013; or

a complaint made to the IBAC in relation to the police personnel conduct of a member of Victoria Police personnel other than a police officer or protective services officer;

in relation to a public officer who is a police officer or protective services officer—

conduct which constitutes an offence punishable by imprisonment; or

conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);

in relation to a public officer who is a Victoria Police employee or police recruit, conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it.

For the purposes of this Act—

a public sector body within the meaning of section 4(1) of the Public Administration Act 2004;

a body, whether corporate or unincorporated, established by or under an Act for a public purpose, including a university;

the Electoral Boundaries Commission constituted under the Electoral Boundaries Commission Act 1982;

a Council;

Gellung Warl;

a body, including a body that is an associated entity, that is performing a public function on behalf of the State, another public body or a public officer (whether under contract or otherwise);

any other body or entity prescribed for the purposes of this definition;

a person employed in any capacity or holding any office in the public sector within the meaning of section 4(1) of the Public Administration Act 2004;

a person to whom a provision of the Public Administration Act 2004 applies as a result of the application of Part 7 of that Act;

an ongoing employee or temporary employee in the teaching service under the Education and Training Reform Act 2006;

a judicial employee employed under Division 3 of Part 6 of the Public Administration Act 2004;

a Ministerial officer employed under Division 1 of Part 6 of the Public Administration Act 2004;

an electorate officer within the meaning of the Parliamentary Administration Act 2005;

a Parliamentary adviser employed under Division 2 of Part 6 of the Public Administration Act 2004;

a Parliamentary officer within the meaning of the Parliamentary Administration Act 2005;

a member of Victoria Police personnel;

a responsible Minister of the Crown;

a member of the Legislative Assembly or the Legislative Council;

a Councillor within the meaning of section 3(1) of the Local Government Act 2020;

a member of Council staff employed under the Local Government Act 2020;

in relation to Gellung Warl—

a member of the First Peoples' Assembly;

a Nyerna Yoorrook Telkuna member;

a Nginma Ngainga Wara member;

the Chief Executive Officer;

members of staff employed or engaged by Gellung Warl;

a judge, a reserve judge, a magistrate, a reserve magistrate, a coroner or a member of VCAT;

an associate judge or a judicial registrar;

a Crown Prosecutor;

the Chief Crown Prosecutor;

the Director of Public Prosecutions;

the Governor, the Lieutenant-Governor or the Administrator of the State;

the Auditor-General;

the Ombudsman;

the Electoral Commissioner;

the Parliamentary Budget Officer;

the holder of any other statutory office or any other prerogative office;

any other person in the service of the Crown or a public body;

a person, including an individual who is an associated entity, who is performing a public function on behalf of the State, another public officer or a public body (whether under contract or otherwise);

a person who holds, or a person who is a member of a class of persons who hold, an office prescribed to be a public office for the purposes of this definition;

an employee of, or any person otherwise engaged by, or acting on behalf of, or acting as a deputy or delegate of, a public body or a public officer;

The following are not a public body or a public officer for the purposes of this Act—

the IBAC;

an IBAC Officer;

a Public Interest Monitor;

the Office of the Special Investigations Monitor;

the Special Investigations Monitor appointed under section 5 of the Major Crime (Special Investigations Monitor) Act 2004;

Integrity Oversight Victoria;

an Integrity Oversight Victoria Officer within the meaning of section 3 of the Integrity Oversight Victoria Act 2011;

a judicial member of the Courts Council within the meaning of the Court Services Victoria Act 2014;

a court;

an investigating panel;

a member of an investigating panel.

In determining if a function is a public function the factors that may be taken into account include—

that the function is conferred on the body or person by or under a statutory provision;

that the function is of a regulatory nature;

that the body that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State;

that the body is publicly funded to perform the function.

The fact that a body or person receives public funds or uses or expends public funds does not of itself make that body or person a public body or public officer for the purposes of this Act.

Subsection (5) does not apply in the case of a person or body that is an associated entity.

For the purposes of this Act, other than Divisions 1 and 2 of Part 3—

a public interest complaint that would not otherwise constitute a complaint is taken to be—

a complaint made to the IBAC under section 51; or

if the disclosure relates to the conduct of a member of Victoria Police personnel—a police personnel conduct complaint made to the IBAC under section 52; and

the person who made the public interest complaint is taken to be the complainant in relation to the complaint.

To avoid doubt, a public interest complaint that would otherwise constitute a notification under this Act is taken to be a complaint not a notification.

provide for the identification, investigation and exposure of—

corrupt conduct; and

police personnel misconduct;

provide for the IBAC to prioritise the investigation and exposure of serious corrupt conduct or systemic corrupt conduct;

assist in the prevention of—

corrupt conduct; and

police personnel misconduct;

facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community and the ways in which corrupt conduct and police personnel misconduct can be prevented;

assist in improving the capacity of the public sector to prevent corrupt conduct and police personnel misconduct;

provide for the IBAC to assess police personnel conduct.

This Act binds the Crown—

in right of the State of Victoria; and

to the extent that the legislative power of the Parliament permits, in all its other capacities.

To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations.

is the conduct of, or in relation to, a person or body (whether or not still in existence) who or which would have been a public officer or public body within the meaning of this Act as amended by the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016 had this section been in force at the time the conduct occurred; and

would have been corrupt conduct or police personnel conduct within the meaning of this Act as amended by the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016 had this section been in force at the time the conduct occurred.

dismissed under section 58(a); or

referred to a person or body (other than the Ombudsman) under section 73; or

referred to the Ombudsman under section 73 and the Ombudsman has dismissed it or has determined not to investigate it.

The Independent Broad-based Anti-corruption Commission is established.

The IBAC does not represent the Crown.