MISCONDUCT IN PUBLIC OFFICE

By Kelvin (Kel) Glare, former Chief Commissioner and Chair of the CAA.

Misconduct in public office in Victoria is defined by the Independent Broad-based Anti-corruption Commission (IBAC) as any action by a public sector employee that is unlawful or falls short of required ethical and professional standards.

The case of Shum Kwok Sher v HKSAR [2002] 2 HKLRD 793 at [91] sets out the reasons for such a wide definition as necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers. An alternative way of dealing with misconduct by public officers would be to enact a statute formulating specific offences for particular categories of misconduct in public office.

The adoption of that course would involve a loss of flexibility and run the risk that the net would fail to catch some forms of serious misconduct. To suggest that the offence requires further definition would be to pursue a degree of definition which is unattainable, having regard to the wide range of acts and omissions which are capable of amounting to misconduct by a public officer in or relating to his office.

The offence serves an important purpose in providing a criminal sanction against misconduct by public officers.

In a Victorian context, does this mean that failure to prosecute cases where there is strong prima facie evidence to support the bringing of criminal charges is, of itself, ”Misconduct in Public Office”?

Victoria has seen many instances where no action has been taken or inappropriate action has been taken that ought to have raised the issue of “Misconduct in Public Office”.

• George Pell – prosecution, where it was found that a conviction was not upheld; however, there should never have been a prosecution in the first place.

Importantly, you will recall the work done by journalist Andrew Bolt, who demonstrated how it was highly improbable that Pell had the opportunity to offend, let alone actually offend.

A reasonable and indefensible Reasonable Doubt.

Despite the alarm bells that Bolt raised, doubting the validity of a prosecution, the police and the Director of Public Prosecutions (DPP) went ahead anyway. Neither the DPP nor VicPol were held to account for a miscarriage of justice. The question is, why?

• Slug Gate – was a prime example where normal Police practices were set aside when there was ample evidence to prosecute perpetrators involved in what can only be described as an ideological political stitch-up of a small business operator who, after many years of providing food services to Local Government and other entities, had the misfortune of a Government deciding to enter into the industry with a government-funded competitor hell bent on success.

There was ample evidence of a number of prime facie criminal offences committed by the promoters and operators of this Government-funded competitor, but none were ever prosecuted – Why?

• Nicolla Gobbo Affair – cited by a Jurist who described the Gobbo affair not merely as professional misconduct, but as a corruption of the criminal justice system itself, involving fundamental breaches by both Gobbo and Victoria Police.

Even with such a damning indictment from the High Court, no person has been charged or made to answer for their behaviour or role in this matter, which included many in the highest echelons of Victoria Police, including a number of Commissioners and Chief Commissioners, and the members of the Victorian Bar.

There has been a rumour that some of the lower-ranking Police involved were to face accountability, but this would be a supreme travesty given the rank of the architects of this debacle. They are the ones who must atone, not those who operate under their instruction or supervision.

That many involved have left the force for whatever reason; that must not be the get-out-of-jail-free card that many have dealt themselves.

There would be absolute and justifiable community outrage if a criminal responsible for egregious crimes were able to escape investigation and accountability by playing a similar card to the Police in the Gobbo matter. We need to know why?

• Bike Boy – All matters are not historic, and the Bike Boy incident, where Daniel Andrews, the then leader of the Oppositions car, struck and severely injured a young boy, has never been properly resolved. No proper investigation was undertaken, and it has taken a number of retired Police to conduct a detailed examination without the resources available to serving police to compile a very solid brief of evidence against Daniel and Catherine Andrews. Adding to that, media reports painted the attending Police as failing to fulfil their professional obligations. The two suspects in this case were the then Opposition Leader of the State of Victoria and his wife. It is no wonder that crime in this State is rampant when the dignitaries are placed above the law, setting an example for the rest of the criminal community.

Miscreants must be charged and face a court, as we would expect to happen to any other Victorian.

If not, we must know why?

 What is the Purpose of IBAC? 

The anti-corruption body we have seems only to target low-hanging fruit but does nothing to hold the senior miscreants and architects of corruption to account.

Who then holds The Office of Public Prosecutions or IBAC to account?

Whatever the process of accountability is, it is not working for Victorians.

“Whether the elections produce a new government or a recycled one, Victorians are owed a debt of transparency in the operations of anti-corruption and integrity agencies.”