Victorian Ombudsman Deborah Glass is right. Last week’s report on misconduct inside the government of Daniel Andrews was not merely educational, as claimed by the Premier. It was much worse.

That report by the state’s anti-corruption commission contains accusations that are so serious they should be referred to the Office of Public Prosecutions.

That could be done now, thanks to a little-known statutory provision that could bring this affair before the courts despite the fact that the Independent Broad-Based Anti-Corruption Commission has been unable to make corruption findings.

Section 74 of the IBAC Act gives the commission discretion to refer any matter “at any time” to a prosecutorial body if IBAC considers it relevant to the performance of the prosecutors’ duties, functions or powers.

Using section 74 is the logical way forward. The conduct uncovered by IBAC seems to meet many of the elements of the criminal offence of misconduct in public office.

Yet IBAC is prevented by its own statute from concluding that any offence has been committed; its priority is to investigate and expose corruption but it cannot find anyone corrupt unless an offence has been committed.

Referring this matter to the OPP could overcome a statutory inconsistency that seems to be impeding the commission.

In last week’s report, IBAC stated that it is not a court and is prohibited from including in its reports any finding or opinion that a person is guilty or has committed a criminal or disciplinary offence, or that a person should be prosecuted for any such offence.

But it also said: “The evidence gathered in the investigation fell short of establishing that any person had committed corrupt conduct within the meaning of the IBAC Act – noting that this would include a requirement to be satisfied that a relevant offence had been committed.”

So it cannot conclude that an offence has been committed; but it cannot make a corruption finding unless it is satisfied that an offence has been committed.

Some, like former Court of Appeal judge Stephen Charles, have argued that the solution to this conundrum is to change the IBAC Act so a corruption finding no longer requires the presence of an offence.

But such a change would only affect subsequent matters. It would not apply retrospectively and would therefore do nothing to address the conduct that came to light last week.

IBAC was not permitted to determine whether the elements of the offence of misconduct in public office were present in the material outlined in last week’s report. That is the role of the courts.

There is no suggestion that those who were named or featured anonymously in last week’s report are guilty of criminal conduct. They are entitled to a presumption of innocence unless a court rules otherwise.

It also should be kept in mind that IBAC’s findings fall short of the standards used in the justice system. The commission is not bound by the rules of evidence and does not make findings that are beyond reasonable doubt.

But unless its accusations of misconduct in last week’s report are tested against the requirements of the law they will remain – as Andrews said – merely of educational value.

The elements of misconduct in public office were conclusively outlined in 2010 by former IBAC commissioner Robert Redlich when he was a judge of the Victorian Court of Appeal.

On the face of things, the biggest issues for the OPP would be Redlich’s first two elements: whether the anonymous ministerial advisers who were the central players in this affair are considered to be public officers and whether their actions were connected to their public office.

The other elements are whether they wilfully misconducted themselves, whether they did so without reasonable excuse or justification and whether their misconduct was serious and deserving of criminal punishment.

IBAC found the government had awarded a $1.2m training contract to a union-owned organisation after the ministerial advisers exerted improper influence over procurement processes.

One of them exerted pressure on departmental staff to award the contract to the union-linked company.

Another intruded on departmental management of the contract in ways that favoured the union-linked company and which were against the public interest.

When this report was made public, the advisers might have drawn some comfort from the section that says ministerial advisers are employed by the Premier and are not public servants.

They were not public decision makers and were not subject to public accountability regimes, the report says.

But if they thought that meant they were not public officers – for the purposes of Redlich’s elements of the criminal offence – they were mistaken.

In 2014, the Criminal Law Journal published an article on misconduct in public office that made it clear that the definition of “public officer” for the purposes of this offence extends beyond public servants.

“It can include persons in private employment who perform public functions,” wrote David Lusty, who at the time was a special counsel with the Australian Securities and Investments Commission.

Those who are unhappy about the way this affair has played out need to keep in mind that IBAC is merely an investigative agency. Only the courts are empowered to hold public officers accountable for misconduct in public office.

It also needs to be kept in mind that while IBAC can uncover wrongdoing, the courts are where wrongdoing is punished.

The maximum penalty in Victoria for misconduct in public office is 10 years in prison.

The investigation is over. It’s time to test the results against the requirements of the law.