Recently I wrote to the Victorian Parliamentary ‘Integrity and Oversight Committee’ (IOC) which has been tasked with reviewing the powers and functions of Victoria’s Independent Broad-based Anticorruption Committee (IBAC)

The Committee is headed by Greens Member, Tim Read, who has publicly advocated for increasing IBAC’s powers and funding. But it would be prudent to consider the potential impacts on Human Rights, Natural Justice and the Rule of Law.

One of the fundamental tenants of the Rule of Law is that accused persons have the right to defend themselves. Normally, in a Court of Law, defendants have the right to discovery of documents, they can cross examine witnesses of the prosecution and can provide their own witnesses. When the Parliament set up IBAC it was given extraordinary powers that were not subject to such judicial scrutiny on the basis that it would uncover real indictable corruption. IBAC’s own definition of corruption is ‘conduct that would constitute a relevant criminal offence.’

The intent was that IBAC would produce reports and name individuals only in cases where such real indictable corruption was discovered and where such corruption would be referred to Police and Prosecutors to initiate charges leading to a trial. The protection for those accused by IBAC in such reports involving indictable corruption was to be that they would have their day in Court where the allegations would be subject to normal cross examination. discovery and the presentation of alternative evidence. It is on these bases that IBAC was granted extraordinary powers.

IBAC has perverted the intent of the Parliament through a sleight of hand. They commence investigations on the basis that an allegation has been made where they suspect corrupt, indictable behaviour. Once commenced, even if they find at a very early stage that there is no indictable corruption, they continue their investigations and produce a report which identifies what they consider to be inappropriate behaviour.

Once made public this report can cause massive reputational damage. But the person identified as being involved in inappropriate behaviour does not have his or her day in Court. They are unable to cross examine the witnesses that IBAC relied upon to reach their inappropriate behaviour conclusion. They have no Rights of discovery. They cannot present their own witnesses in their defence. How can such a situation be considered as just?

Should IBAC be given the powers it seeks to go after inappropriate but not indictable behaviour they could forego any pretence of looking for indictable corruption and simply focus their powers and resources on uncovering such inappropriate behaviour where reputations are destroyed with no legal recourse to having the evidence on which IBAC bases its findings tested in a court. This is a serious issue.

IBAC initiated an enquiry when two “witnesses” apparently made allegations against me. I have put “witnesses” in inverted comma’s because throughout the investigation they remained unnamed and none of their testimony or allegations is quoted in the report. I sought assurances from IBAC that these persons did not have personal or political agendas, but IBAC refused. There is no appeal to IBAC decisions.

My family and I have survived IBAC’s attack because people who know me know that I have passionately devoted my life to public service. I have always acted in the best interests of the governments I served, the boards that I was privileged to be on, the Greek and Cypriot communities that I have represented, and indeed the people of Victoria.

I have been appointed as President of the Cyprus Community of Melbourne and Victoria and continue my work to assist that community and other such communities. My removal from the Boards of State Trustees and Victorian Planning Authority following IBAC’s report has deprived those boards of experience and a diversity perspective in both planning and looking after the affairs of our elderly. My colleagues on those boards have expressed that view to me.

It’s important to note that almost the only protection afforded to citizens is that IBAC are supposed to adhere to the High Court’s Briginshaw test, which demands high probative proof and testing of alternative explanations. There is no way of forcing IBAC to meet this standard as they are the sole judge of whether it has been met.

IBAC, did not find any corruption in my case but rather that I was involved in “unpaid lobbying” for a private company without registering it on the lobbyist register and had encouraged that company to buy four tickets totalling $10,000 to an ALP fundraiser allegedly in exchange for such lobbying. I rejected IBAC’s allegations of misconduct in my submission including pointing to their refusal to ask the Ministers if they thought I was lobbying them.

IBAC is suspicious of all lobbying. There is little understanding that in the political world and especially within diverse cultural communities, frank discussions occur all the time that are helpful to democracy. IBAC found it difficult to see that someone like me, would talk up a project in informal settings that I believed would create thousands of jobs, investment, and educational opportunities for the Western suburbs, without labelling it as lobbying. I still wish that the project had gone ahead as it would have made a significant positive contribution in Labor’s favour in the impending by-election in Werribee.

In relation to scrutiny of its own operations, IBAC has shown contempt for the Victorian Inspectorate charged with this task. Following an unfortunate suicide resulting from an IBAC investigation, IBAC attacked the Victorian Inspectorate, for daring to criticise it.

By contrast, serious overreach by the South Australian ICAC, which led to a suicide and the destruction of the careers of several public servants, led the SA Parliament to unanimously vote to restrict its ICAC to examining serious corruption. The President of the Bar Council of South Australia Marie Shaw KC and two of her colleagues strongly argued that South Australia’s corruption body experience is a warning against providing excessive powers without accountability to such bodies.

As things stand it is virtually impossible to contest IBAC’s legal right to publish allegations of inappropriate but not corrupt behaviour. Unless stopped they will continue to ruin reputations in circumstances where, no indictable corruption has been established, no charges are to be laid, no opportunity exists to cross examine or introduce new witnesses, and no discovery of the evidence relied upon is allowed. How can that be in keeping with justice, the rule of law and Human Rights?

Theo Theophanous is a former Victorian government minister and member of Legislative Council and he is currently the President of the Cyprus Community of Melbourne and Victoria.