Wednesday, 22 February 2023

Integrity and Oversight Committee

Performance of the Victorian Integrity Agencies 2020/21: Focus on Witness Welfare

Tim READ (Brunswick) (10:30): I rise to speak on the report of the 59th Parliament’s Integrity and Oversight Committee titled Performance of the Victorian Integrity Agencies 2020/21: Focus on Witness Welfare. I will focus on just two issues: one relating to witness welfare in the IBAC’s public hearings, and the second issue, which appears as an underlying subplot in the report, relating to the conduct of the Integrity and Oversight Committee members and its chairperson and how this demonstrates a problem in Parliament’s joint investigatory committees.

First, I will talk about the IBAC and public hearings. Our integrity agencies are granted some extraordinary powers, including coercive powers such as witness summons and the ability to hold public hearings. Holding public hearings is, as the Western Australia Corruption and Crime Commission’s Kirsten Nelson puts it, ‘essential to restoring public trust and confidence in public institutions’, but this does not mean that integrity agencies can be insensitive to the mental health of those subject to coercive public examination. Under section 117(1) of the Independent Broad-based Anti-corruption Commission Act 2011, a public hearing can only be held – and I paraphrase – where (a) there are exceptional circumstances; (b) it is in the public interest; (c) a public examination can be held without unreasonably damaging a person’s reputation, safety or wellbeing; and (d) the conduct under investigation may constitute serious or systemic corrupt conduct. This is the highest threshold for holding public anti-corruption hearings in the nation, but the requirement for exceptional circumstances to hold a public hearing serves no benefit either to a witness or the public apart from imposing an artificial reason not to hold a public hearing. I think the general public would expect that public hearings should always be held when IBAC is investigating serious and systemic corruption and where it has been determined that it is in the public interest to do so.

Recommendation 2 in the Integrity and Oversight Committee’s report is for the government to amend the IBAC act to require IBAC to develop guidelines and give reasons for holding public examinations under section 117(1). The Greens support this recommendation. But given the advantages of holding public hearings and the unjustifiable limitation on IBAC holding a public hearing via the exceptional circumstances threshold, we are also calling for the exceptional circumstances requirement to be repealed from the IBAC act.

I will now turn to the second issue in the report and minority report. The committee’s report outlines how section 7(2) of the Parliamentary Committees Act 2003 justified a cautious approach to hearing evidence from witnesses that resulted in limited evidence being heard by the committee, particularly during public hearings. The report argued that it was bound by section 7(2), which prevents the committee investigating a matter before an integrity agency or reviewing a decision of an integrity agency or prejudicing criminal proceedings or investigations. After reading the report, these justifications for limiting evidence are flimsy and not proportionate to any risks. The report also does not explain why the committee did not attempt to manage such risks through means that were less compromising to the inquiry, which would have enabled all relevant evidence to be heard.

As an outsider looking in, it is certainly far easier to believe that this government-dominated committee acted in the way it did to protect the government, the executive and the Premier rather than to virtuously promote section 7(2) of the Parliamentary Committees Act. This is a problem even if this assessment is baseless, because the perceived independence of these committees is critically important for them to function.

There is a conflict of interest where members of investigatory committees scrutinising the government are expected to perform this duty impartially whilst remaining loyal to their political party and its leadership, and government chairs of these committees often go from chairing the committee that scrutinises the executive to being appointed as a member of the executive during the course of the inquiry. The same conflicts of interest apparent to existing government chairs of committees will apply to all future chairs of investigatory committees when they are also members of that government, regardless of political colours. Where conflicts cannot be managed they must be avoided, and this is a case in point. Because parliamentary investigatory committees are impossibly compromised in their functions when dominated by government members, I call on the government to correct this failure by mandating that such committees are sufficiently independent of government control.