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Facilitator: Hello and welcome to the latest IBAC podcast. In July 2016, the Victorian Parliament passed legislation to establish a new requirement, the heads of public sector bodies to notify IBAC, Victoria's Anti-Corruption Commission of suspected corruption. Coming into effect on 1 December last year, the requirement was part of a raft of measures to strengthen the State's integrity system. Today we're talking to Alistair MacLean, CEO of IBAC, about this new requirement and what it means for the Victorian public sector. Good afternoon Alistair.
Facilitator: Firstly, was my summary of mandatory notifications correct?
Interviewee: In essence yes exactly. So in plain English what it means for the Victorian public sector is that a Head of an agency is now required to report suspected corrupt conduct to IBAC. Previously that was a discretionary element for them. They didn't have to report such conduct but now the onus is on all Heads of public sector agencies to report to us.
Facilitator: Why is that important?
Interviewee: Well firstly from a strategic or long term point of view it provides both us and the public sector an opportunity to build an accurate picture of corruption risks across the public service and public sector agencies and then respond accordingly in working to prevent corrupt conduct from occurring in the first place. So it's not just about us responding to a specific complaint or notification of suspected corrupt conduct and investigating that specific complaint. It's also about a more strategic approach to the risks of corrupt conduct and how we can all work together to prevent that conduct from occurring in the first place.
Facilitator: So the obligation to notify of suspected corrupt conduct rests with Relevant Principal Officers. So who are Relevant Principal Officers?
Interviewee: Well the definitions are provided in the Act so listeners can always refer to the legislative language. But a Relevant Principal Officer is essentially Heads of a State Government department or agency, the CEO of a local council or a statutory body. The Heads of a public sector agency are essentially Relevant Principal Officers or RPOs for the purposes of the legislation. So the obligation applies to any person acting in the position of a Relevant Principal Officer and if it's not clear cut for your agency then we just encourage you to seek independent legal advice or in the first place contact IBAC.
Facilitator: So what are the sorts of things that Relevant Principal Officers need to notify IBAC of?
Interviewee: Well the primary responsibility under the so-called mandatory notification is that they must firstly suspect on reasonable grounds that corrupt conduct has occurred or is occurring. If they have that suspicion and that the suspicion must rest with the Relevant Principal Officer and the suspicion must be based on facts and circumstances that would be sufficient to make a reasonable person suspect corrupt conduct, then the obligation kicks in for them to report that to IBAC.
Facilitator: So if they go and they do report this to IBAC, what does IBAC then do with it?
Interviewee: Well under the Act once we receive the notification we treat it like any other report of suspected corrupt conduct, complaints from the public for example and we have to assess the notification. Then do one of three things with it, dismiss it, refer it or investigate it. When I say dismiss a notification that means essentially that there's insufficient information provided or because the matter has already been dealt with in the past or investigated by another agency or that there is no new or further evidence associated with that particular notification. These are kinds of circumstances under which we would dismiss a matter.
We can refer a notification to another body where we determine that it warrants investigation but that it's probably most appropriate that that other body investigate the matter. So we can refer a matter back to the Relevant Principal Officer who notifies us of the suspected corrupt conduct and ask that they report back to IBAC once they've completed their investigation.
In a very small number of notifications IBAC will decide to directly investigate the matter itself. To date that's only applied to less than one per cent of the complaints and notifications that we receive. Of course, under our legislation we have to prioritise the most serious or systemic instances of suspected corrupt conduct for investigation by IBAC with the kinds of powers that we have. In doing so we can do a preliminary investigation which is to really just look at a matter a little bit more closely before formally deciding to investigate it. But our third obligation under the Act is to determine an investigation. So once again we either dismiss, refer or investigate a matter.
Facilitator: So what actions can happen while IBAC is making an assessment?
Interviewee: You're right. We have to assess a matter once it comes to us and that can take up to a few short weeks. Whilst that assessment's taking place our strong preference and our guidance to Relevant Principal Officers is that nothing be done so as to not compromise a potential investigation either by us or by another body. However, we understand that sometimes action does need to be taken and that Relevant Principal Officers have obligations other than just to IBAC.
So where an action is justified might be where it's necessary to lessen or prevent a threat to health, safety or welfare of an individual or public health or safety where there's another legal obligation such as a duty to report the matter under legislation or indeed in reporting the matter to Victoria Police as a potential criminal act. Where a Relevant Principal Officer judges it necessary, then we would simply urge that they contact us so that we can coordinate our responses. That's already happened in a number of matters where we've worked closely with, for example, the CEO of a local council to address what's most appropriate for them to do whilst we assess a matter given their other obligations.
Facilitator: So how is IBAC supporting the public sector to understand its requirements around mandatory notifications?
Interviewee: Last year once the amendments to the legislation had been passed we developed what we called a set of directions in draft form and these are essentially the guidance for the public sector and Relevant Principal Officers. We undertook a three to four month consultation period, held meetings for example with CEOs of local councils, with Secretaries of departments et cetera and then finalised those directions late last year. In doing so held a number of seminars in which we talked to Relevant Principal Officers and managers et cetera directly.
Those directions are now public and on our website and they form the basis for our relationship with Relevant Principal Officers once they make a notification. Then also we'd always urge people to just pick up the phone and talk to IBAC about the regime and what it means either for them individually or for their organisation in undertaking that obligation.
Facilitator: So the obligation has been in place since 1 December 2016, what's been IBAC's experience with mandatory notification so far?
Interviewee: Well it's early and it's only been less than two months and that's been through the summer Christmas/New Year period, so we expected that we wouldn't have a sudden rush of notifications. There have been, that said, an up-tick if you like in the notifications that are received and a number of really discussions with CEOs, Secretaries, Heads of public sector agencies about what their obligations are in respect of particular circumstances.
Now that the summer's drawing to a close and people are coming back to work, we do expect it to increase further over the next couple of months. Then perhaps around Easter or towards the middle of this year we'll review the mandatory notifications regime, what we've received and begin to provide some feedback to the public service and the public sector more generally. We'll also be looking for their feedback to us on their experiences to date.
Facilitator: Have there been any issues so far that IBAC's identified?
Interviewee: No particular issues although there is some uncertainty around how protected disclosures, in other words the whistle blower regime interacts with mandatory notifications. To clarify, we treat all complaints and notifications in the same way. They're assessed for whether they attract the protections offered under the Protected Disclosure Act and therefore classified as protected disclosures. This includes all notifications made by Relevant Principal Officers. So if you're a Relevant Principal Officer you're notifying IBAC of suspected corrupt conduct, you don't need to separately notify us of a potential protected disclosure. We'll treat your initial notification and assess it for protected disclosure status. Same vice versa.
In other words, if we receive a potential protected disclosure we would treat it as a mandatory notification at the same time. So we're not doubling up here, we're trying to make things as simple as streamlined as possible for the public service in reporting suspected corrupt conduct or indeed reporting potential protected disclosures to IBAC.
Facilitator: Any other issues you've identified?
Interviewee: None in particular although I think what we would reiterate is this issue of where Relevant Principal Officers feel that they've got other obligations they need to fulfill whilst we're assessing a notification. We understand that. We look to work closely with Relevant Principal Officers and we would ask that they simply contact us, either myself directly or our switchboard, our staff and seek guidance, clarity or further advice on what we would see as the most appropriate steps for them going forward. Ultimately of course they need to seek their own advice and make their own decisions about what their obligations are, for example under industrial relations legislation or under health and safety legislation or obligations and balance those against the obligations to report suspected corrupt conduct to us.
So in the end we can provide advice, provide clarity on what the obligation to IBAC is but Relevant Principal Officers will have to seek their own advice and form their own judgments and opinions.
Facilitator: So what are your plans to further build the understanding of mandatory notifications in the Victorian public sector?
Interviewee: Well as I mentioned earlier, last year we issued directions or guidance to the public sector about the mandatory notification obligation. We conducted some seminars with relevant agencies about what those notifications mean and what the directions mean. This year in 2017 we'll likely review the regime after three to six months. We'll be providing feedback to the public sector about our experience to date and we also will seek feedback from the public sector to IBAC about the public sector's experience.
So far and for the foreseeable future we'll have a single set of directions. In other jurisdictions in Australia multiple directions have been developed for multiple agencies, in Queensland and Western Australia for example. But for the moment we're going with a generic single set of directions. Over time we'll be talking to different parts of the public sector about whether or not different kinds of guidance are required for different parts of the public sector, for example local councils as opposed to government departments or the hospital sector as opposed to the schools sector. But that's something we'll look to develop over the next two to three years, perhaps longer, and that will be very much guided by the initial reviews that we have over the course of 2017.
More generally and in our public communications we need to ensure that the community itself is aware of these mandatory notification requirements as much as the public sector, employers and Relevant Principal Officers. So that forms part of our ongoing community awareness program and that's something we'll be developing some further activity on over the next year.
Facilitator: So where can people go if they want to find out more about mandatory notifications?
Interviewee: Well for the first place to go is to our website and from there you can see the directions that we've developed. Of course, you can go to the legislation as your first port of call and that's also available on the website. You can call us on 1300 735 135 to talk to staff here at IBAC or you can email info@ibac.vic.gov.au for a response from our team here as well.
Facilitator: Alistair, thanks so much for talking with us this afternoon.
Interviewee: Thank you, it's been a pleasure.
Facilitator: That was Alistair Maclean, IBAC CEO. For more information about corruption and how to prevent it, go to www.ibac.vic.gov.au or follow us [@ibacVic] on Twitter.
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