Wednesday, 22 June 2022

Bills

Independent Broad-based Anti-corruption Commission Amendment (Facilitating Timely Reporting) Bill 2022

Second reading

Debate resumed on motion of Mr DAVIS:

That the bill be now read a second time.

Mr GEPP (Northern Victoria) (14:32): I am pleased to rise to speak on the Independent Broad-based Anti-corruption Commission Amendment (Facilitating Timely Reporting) Bill 2022 brought to this place by Mr Davis. I attended the meeting of the Scrutiny of Acts and Regulations Committee as we do on each Monday prior to the sitting week, and it just so happened that this week the SARC dealt with this particular bill—dealt with it by way of report and that was tabled yesterday in this place.

Mr Davis: On a point of order, Deputy President, perhaps for the assistance of the chamber, the Scrutiny of Acts and Regulations Committee wrote to me at 12.01 today just as question time was starting. I have a response coming to SARC in the next hour or so—

Mr GEPP: That is not a point of order.

Mr Davis: No, no. I am just pointing that out.

The DEPUTY PRESIDENT: Mr Gepp, it is not a point of order. I think it is just a point of clarification.

Mr GEPP: On the point of order, Deputy President, I am not sure where in the standing orders we have points of clarification. Mr Davis will get an opportunity to respond at the end of the debate.

The DEPUTY PRESIDENT: Mr Gepp to continue.

Mr GEPP: He continues to make things up, but I am not surprised that he is so defensive about the SARC, particularly when we cast our minds back to the debate about the public health and wellbeing act and the hyperbole, the flourishment of invective that we got from Mr Davis during those debates about the role of the SARC, the reports that the SARC made around those particular acts and Mr Davis’s view that the government of the day ought to have withdrawn the public health and wellbeing bill to allow SARC to continue its work because it had written to the government before the bill had been passed through the Parliament. There are a lot of similarities between that process and this particular process.

Mr Davis interjected.

Mr GEPP: Well, Mr Davis, if you knew anything about the SARC and if you knew anything about the role of the SARC, you would know that the SARC deals with the bills after they have passed through a house and before they get to the second house. That is generally when it reports on its matters. That is what it did; that is what it does.

Mr Davis interjected.

Ms Stitt: On a point of order, Deputy President, the level of interjection from Mr Davis is getting a bit beyond belief, so I would like to be able to hear Mr Gepp’s contribution.

The DEPUTY PRESIDENT: I do not think it is actually a point of order, but I appreciate the sentiment. Mr Gepp, without assistance.

Mr GEPP: Thank you, Deputy President. So that is the role of the SARC. The SARC gets the bills that are tabled in the other place this week. We will get those bills after they have passed through the other place and before they come to this.

Mr Davis interjected.

Mr GEPP: President—

The DEPUTY PRESIDENT: Order! Mr Davis. Mr Gepp, without assistance. You can make your point in your contribution.

Mr GEPP: He is like Gerry Gee. I can feel his hand up my back every time. My lips are moving and no sound is coming out of my mouth. It does not have to, because he is over there.

So that is the way that the SARC works. The bills pass the other place. They go to the executive officer. They go to the parliament-appointed, pre-eminent authority for the human rights charter, who provide assistance and recommendations to the SARC. The SARC then tables those reports at the beginning of the next sitting week in both houses. That is the way it works.

I remember all too well as the chair of the SARC, because each time I tabled a report during that process on the public health and wellbeing act, Mr Davis was continually on his feet berating the SARC, berating me—that is okay—and berating the government, saying that we ought to allow the SARC to do its work. Of course I am not surprised that he has been interjecting on this point continuously just in the few minutes that I have been going, because those words are coming home. Those chickens are coming home to roost, because on Monday the SARC dealt with this bill, and it raised some serious, serious concerns with the bill. Mr Davis either knows that this bill is reckless in a number of key areas—and I will come to those—or he has been very lazy and very sloppy with the drafting of the bill and he has no idea of the impact or the effect of what he is proposing to the house. But it is important that the house understands clearly and unequivocally what Mr Davis is asking this place to pass.

The first point that the SARC report touched on was clause 4. Clause 4 of the bill—the amendments to the Independent Broad-based Anti-corruption Commission Act 2011—amends various provisions and declares the Parliament’s intention that applications under three key sections, 59M, 100 and 147, be determined with as much speed as the requirements of the act and proper consideration of the application permit.

Now we turn to the SARC’s report, and it says:

The Committee notes that Section 85(1) of the Constitution Act 1975 provides that the Supreme Court of … Victoria shall be the superior Court of Victoria with unlimited jurisdiction.

In other words, the Supreme Court is the supreme court jurisdiction in this state. The committee made the general observation that the Supreme Court of Victoria may take an unspecified length of time to determine any applications made to it, including those sections that I referred to earlier: 59M, 100 and 147 of the IBAC act. The report goes on to say that under section 17(b)(iii) of Parliamentary Committees Act 2003:

If a bill does not repeal, alter or vary section 85 of the Constitution Act 1975—

that is, the section of the constitution that provides that the Supreme Court shall be the superior court of Victoria with unlimited jurisdiction—

but an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that …

under the act. And when you consider the SARC report, it raises some very, very serious concerns. It says that the amendments being proposed under clause 4 of Mr Davis’s bill:

… may declare Parliament’s intention that applications made to the Supreme Court of Victoria pursuant to sections 59M, 100 and 147 be determined ‘with as much speed as the requirements of this Act and the proper consideration of the application permit’.

And it notes the second-reading speech of Mr Davis:

The Supreme Court must be free to make its decisions unimpeded—

but then we get the qualifier—

but should be aware of Parliament’s intention that applications be determined with as much speed as is relevant within the requirement of this Act.

But SARC noted that the bill actually does not repeal, alter or vary section 85 of the Constitution Act, which again:

… provides that the Supreme Court of the Victoria shall be the superior Court of Victoria with unlimited jurisdiction.

Clause 4 seeks to wind back that power. Why does Mr Davis want to do it? Those three sections that I referred to:

Section 59N of the IBAC Act provides for the determination of a claim of privilege made by application to the Supreme Court of Victoria under section 59M.

Clause 4 of Mr Davis’s bill inserts:

It is the intention of the Parliament that an application under section 59M be determined with as much speed as the requirements of this Act and the proper consideration of the application permit.

Again, he is pulling back. He wants to wind back the power of the Supreme Court.

Section 101 provides for the determination of a claim of privilege made by application to the Supreme Court of Victoria under section 100. Clause [4]—

of Mr Davis’s bill—

inserts subclause (7) after section 101(6) which states:

It is the intention of the Parliament that an application under section 100 be determined with as much speed as the requirements of this Act …

In other words, although the bill does not repeal or does not vary section 85 of the constitution, which states clearly that the Supreme Court is the superior court of Victoria with unlimited jurisdiction, that is the absolute effect of Mr Davis’s proposition before this house.

Section 148 provides for the determination of a claim to determine privilege or application of secrecy made by application to the Supreme Court of Victoria under section 147.

Yet Mr Davis’s bill says:

It is the intention of the Parliament that an application under section 147 be determined with as much speed as the requirement of this Act and the proper consideration of the application permit.

Again, it seeks to impose itself across section 85(1) of the constitution, notwithstanding that the bill makes no attempt to repeal or vary section 85 of the Constitution Act 1975. We can see at every step along the way in relation to just clause 4 that Mr Davis is knowingly putting before this house a proposition which is incompatible with section 85(1) of the Constitution Act. I do not say this. The government does not say this. This has come from specialist advisers who provide advice to this Parliament through SARC. So it is not me standing here making this stuff up, it is us receiving the advice from pre-eminent experts in these fields, who are saying, ‘Houston, we have a big problem’. But it does not stop there, it just does not stop there—if only it did.

I want to go to clause 6 of the bill, which inserts new section 162AA. It provides that a special report may be transmitted to each house of Parliament:

… despite any proceedings—

you are listening carefully to this—

that are pending in a court in relation to—

(a) the subject matter of the report; or

(b) any other matter or thing that may be relevant to the report.

Well, so what?’, you say. ‘What does that really mean?’. Well, it is significant, because when you read the SARC report and the advice—and I should say that this advice was adopted without dissent on Monday—clause 6 of Mr Davis’s bill intersects with section 17(a)(i) of the Parliamentary Committees Act, and that particular part of the act deals with rights and freedoms: right to a fair hearing, protections and presumption of innocence. But clause 6 of Mr Davis’s bill, through its new section 162AA, provides that IBAC may transmit a report to the Parliament under section 162—and I will underline this—despite any proceedings that are pending in a court in relation to the subject matter of the report or any other matter that may be relevant to the report. Existing subsection (5) of section 162, which is what we are talking about, provides that:

If the IBAC—

this is the current IBAC act—

is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in a report under this section—

which is critical—

the IBAC must not include in the report any information which would prejudice the criminal investigation, criminal proceedings or other legal proceedings.

Subsections (5) to (8) of the current IBAC act provide protections so that a fair hearing can be conducted for a specified person. IBAC must not include information in a report which would prejudice a criminal investigation, criminal proceedings or other legal proceedings. So it is just a little sleight of hand. David Copperfield I think wrote this, not David Davis. There has just been a little sleight of hand, because what does Mr Davis’s bill do? New section 162AA provides that:

The IBAC may cause a report to be transmitted to each House of the Parliament under section 162 despite any proceedings that are pending in a court in relation to—

(a) the subject matter of the report; or

(b) any other matter or thing that may be relevant to the report.

So you can see that the very protections that are offered under the current IBAC act for rights and freedoms—right to a fair hearing, protections, presumptions of innocence et cetera—would be completely and utterly removed, would be gone.

Most concerningly, if Mr Davis’s bill is passed by this place, if it is passed by the Parliament, the clerks will be compelled, should IBAC decide to just put in a report, irrespective of any other matters that are going on in any other jurisdiction which may prejudice somebody’s rights or privacies or right to a fair hearing et cetera, et cetera, to publish it. And not only does it have to be published in each house of this place, the report is taken to be published by or under the authority of each house and is then subject to absolute privilege. The person concerned has nowhere to go. Mr Davis has stripped that individual of all of their rights. Now, he knows that, and if he does not, shame on him. I suspect he does. I suspect he absolutely understands the effect of these provisions, and yet he still wilfully brings this before this Parliament and wants this Parliament to pass a bill that would bypass the constitution of Victoria and strip individuals of their rights, of their privacy, of their right to a fair hearing, all because he wants to make a political point.

But it does not stop there. I wish it did, but of course it does not stop there. When we think about what happens to individuals and these sorts of bills, the other thing that SARC does responsibly, through the experts that give us the advice about these matters legally under the Parliamentary Committees Act 2003 and under the charter of human rights, is to look at other jurisdictions around this country as to where these rights may well have been repealed in some way, shape or form. And, guess what, nowhere else in the country does any other jurisdiction seek to do what Mr Davis is proposing to do here in Victoria. No other jurisdiction in this nation is flirting with any idea, any notion, of bypassing the constitution and introducing a bill that is absolutely contrary to what is in the constitution, and no other jurisdiction in these sorts of matters is seeking to introduce a bill or has an existing bill which would strip an individual of their right to privacy, the right to a fair hearing or the respect of the Supreme Court. No other jurisdiction seeks to do that.

Mr Davis obviously knows what he has put before this house, and if he does not, shame on him, because when you bring matters of this importance to this place you should dot every i and cross every t. You should not leave it up to other people to mark your homework and give you an F for fail, and that is exactly what this bill is—it is an F for failure. It contravenes the constitution of Victoria, it does not recognise the sovereign right of the Supreme Court of Victoria and it wilfully strips individuals of their rights, potentially, to privacy and a fair hearing. It compels the officers of this Parliament to accept a report stripping individuals of those rights and compels them to publish that under the privilege of this place. I understand that SARC may well have written to Mr Davis today, and Mr Davis will have the opportunity to respond. What SARC will do is publish that, as we do faithfully with every piece of correspondence that we receive from every author of every bill that goes through this place, and we will publish it without comment, because it is not our role as the Scrutiny of Acts and Regulations Committee to comment on the merits of the bill; that is a matter for the Parliament. But it is our role to identify where a bill intersects with the Parliamentary Committees Act, where it intersects with the charter of human rights and where it attacks those things.

Just on the charter of human rights, clause 5 of the bill also deals with the charter of human rights. We note that clause 5 seeks to substitute existing subsections 162(2) and (3) and provides that IBAC must give a public body or person adversely named in a report three months to respond, and then there is a whole heap of examples of where that is to apply. But all of those rights are trashed based on the reading of the bill that is before this place.

I go back to the debate that was held here a couple of weeks ago when Mr Davis tried to take my friend and colleague Ms Shing out for a walk around the park—you know, publicly—and get stuck right into her. When chairing the committee hearing and inquiry in which IBAC were—

Mr Davis interjected.

Mr GEPP: Hang on, Mr Davis. You will get your go. Right now you are walking on jelly that is not even set. You will get your go, but you are being exposed. The emperor has no clothes today, because sometimes when you walk into this place and you carry on like a pork chop and you want to point the finger and you want to throw rocks from a very close proximity, you want to be careful that you are not throwing them into a trampoline and they are going to come back and scone you as well. That is what is happening here today.

You tried to take Ms Shing out for a political lap of the oval and give her a public touch-up for her chairing of a committee at which IBAC were present. She quite rightly said at the start of that inquiry and advised all parties that there are rights and requirements for these very technical and very sensitive matters, particularly when they involve individuals, and we have got be very, very careful not to trample on those rights, not to transgress. And when she, as the Chair, quite properly identified that those lines were being crossed, she dealt with it. And I would suggest to the Parliament that the SARC report from Monday vindicates Ms Shing’s chairing of that particular inquiry and says quite clearly that what she was doing under the Parliamentary Committees Act 2003 and the charter of human rights was observing the rights of individuals and the rights of some organisations and ensuring their right to privacy, their right to a fair hearing and their right to be able to respond to particular matters without people waltzing in here and transgressing under the name of privilege and stripping them of their rights.

So at the very least Mr Davis ought to apologise to Ms Shing in his reply. And you should immediately apologise to Ms Shing for your grubby tactics of bringing into that debate her personal relationships with people and trying to muddy those waters. Shame on you for doing that. You should apologise and you should do so unreservedly when it is time to get to your feet. I also remind you of your contribution during the public health and wellbeing act debate and your urging the government based on SARC reports. Firstly you criticised SARC because you said we did not go far enough—because you know better.

Mr Davis interjected.

Mr GEPP: Mr Davis, I accept that you know better than the pre-eminent expert in this state on the charter of human rights. I understand completely that you trump him in terms of your qualifications. You trump him in terms of your expertise. You trump him in terms of your knowledge. And how do I know that? Because of the piece of paper that you have put before this Parliament today—it is clear that you know what you are talking about. Rubbish you do. You have exposed yourself today. The emperor has no clothes today. And why? Because all of the debates, all of the arguments and all of the nonsense and the drivel that Mr Davis continually brings into this place, particularly on a Wednesday, are coming home to roost today. This is the most sloppy bill that I have seen in my time in this place. Granted the combined years on our side of the bench do not match Mr Davis’s longevity in this place, and we are constantly reminded of that, but as a person who has been in this place for that long, Mr Davis should know better than to bring in this sort of bill. It is the Swiss cheese of bills. There are that many holes in it a mouse would not get a feed on it. There is not enough cheese in this Swiss cheese bill for a mouse to get a decent feed. It is full of holes, and the Parliament should reject it.

I would invite Mr Davis to do what he suggested the government do during the public health and wellbeing bill debate: pull this bill today, take it away, take on board what has been said to him by SARC—the pre-eminent experts in this state, who advise this Parliament every sitting week on every bill that has come before this place—and withdraw this bill today. Take away this mess, this Swiss cheese of a bill, put it in your back pocket and stop playing politics with serious matters—and while you are at it apologise to Ms Shing.

Mr BARTON (Eastern Metropolitan) (15:02): I rise to speak about the Independent Broad-based Anti-corruption Commission Amendment (Facilitating Timely Reporting) Bill 2022. This is a technical bill, and we sought external advice around this bill. As I have said many times in this house, the work of IBAC and Victoria’s other oversight agencies is critical to holding the government to account and ensuring the integrity of our public institutions. It is extremely important that they have the laws and funding they need to be able to do this important job, and I continue to advocate on behalf of the Victorian community to ensure that they have both.

The intention of Mr Davis’s bill, which is to ensure the timely tabling of IBAC reports while preserving protections of the rights of individuals, appears sound; however, it is unclear how the bill will contribute to this outcome, and it would appear that it is likely to actually have the opposite impact. My concerns with the bill are particularly informed by the comments made and questions raised by the Scrutiny of Acts and Regulations Committee. In particular SARC has questioned how new section 162AA of the bill interacts and conflicts with existing sections of the Independent Broad-based Anti-corruption Commission Act 2011. The new section provides that the IBAC may transmit a report to Parliament:

… under section 162 despite any proceedings that are pending in a court in relation to—

the subject matter of the report; or

any other matter or thing that may be relevant to the report …

However, existing section 162(5) of the IBAC act prevents IBAC from including in its reports any information which would prejudice a criminal investigation, criminal proceedings or other legal proceedings.

There is clearly also a risk that contempt of court proceedings may apply if IBAC transmit a report to Parliament which prejudices a legal proceeding. Further, such provisions would also appear to engage and possibly conflict with the human rights of individuals to natural justice and due process. I also hold significant concerns about the provisions contained in Mr Davis’s bill that set statutory time lines for individuals and organisations to respond to adverse findings in an IBAC report. Three months would appear to potentially be excessive and I would assume possibly greater than the period IBAC currently provides in relation to engagement with individuals and organisations subject to adverse findings.

It also seems likely that such a provision to further understanding of IBAC’s processes may require IBAC to provide multiple periods of three months for individuals and organisations to provide feedback. This retrospective element of this bill may also further delay investigations that are currently afoot and require IBAC to provide a further three-month consultation period for individuals and organisations subject to adverse findings on which they have already been provided material. Rather than resulting in more timely reporting, even the simplest analysis of the bill makes it clear that these amendments are more likely to result in longer delays to the timely finalisation of IBAC reports and undermine IBAC’s ability to do its important job.

I will always fight for transparency and will always fight to hold government and public officials to account. Unfortunately this bill does neither of these things, and for these reasons I will not be supporting the bill.

Ms BURNETT-WAKE (Eastern Victoria) (15:06): I rise to speak in support of the Independent Broad-based Anti-corruption Commission Amendment (Facilitating Timely Reporting) Bill 2022. This bill seeks to ensure that all reports of the Independent Broad-based Anti-corruption Commission, IBAC, are tabled in Parliament in a timely manner. It does this while preserving relevant protections for those who IBAC may comment on in an unfavourable manner. The opposition have introduced this bill after a string of legal setbacks and roadblocks that have delayed the tabling of IBAC reports to this Parliament.

These reports hold the answers about many allegations of corruption by the Andrews Labor government. Victorians deserve to have these reports tabled as quickly as possible, particularly in the lead-up to the November 2022 election. To date we know that the Andrews Labor government is involved in at least three inquiries into serious corruption. These are Operation Sandon, Operation Watts and Operation Richmond. We know that Premier Andrews has been questioned behind closed doors at IBAC at least twice, but he has still failed to advise Victorians whether he is under investigation or whether he is attending in a witness capacity. An ethical, transparent and accountable leader would face the people who voted him in and would let them know exactly why he is being questioned. This is not the case here.

The only hope Victorians have of finally knowing the extent of this government’s corruption is to wait for these reports to be tabled, and at the moment there are just too many roadblocks and delays. It is in the public interest that all IBAC reports are tabled without unnecessary delay. Under the current legislation, section 59N provides that on an application the Supreme Court must determine whether an IBAC document is the subject of privilege or any secrecy requirements. Section 59N lists numerous things that the court must do if the documents are bound by privilege or secrecy and the things that must happen if they are not. This bill would implement a further section in section 59N to make it clear that Parliament’s intention is that these applications be determined with as much speed as the requirements of the Independent Broad-based Anti-corruption Commission Act 2011 and the proper consideration of the application permit. It implements this intention in sections 100 and 147 as well.

This bill would also introduce a new section 162AA, which allows IBAC to cause a report to be transmitted to each house of Parliament despite any pending court proceedings in relation to the report. This seeks to balance the rights of the people to initiate court proceedings with the right of the public to know what is happening at IBAC and what their elected officials are up to. It is in the interests of all Victorians that all corruption be met with strong legislative powers that have transparency and accountable government at their heart. Corruption impacts public trust in government. It erodes the trust the public have in their public sector. It has a significant adverse impact on the economy. When governments make backroom decisions that lack transparency, inequality between communities is only widened.

We, the opposition, are concerned at the delays in the tabling of IBAC reports, particularly those involving the Andrews Labor government. I have previously spoken in this chamber on our motion to increase funding to IBAC and the Ombudsman. This would have provided an immediate injection of $10 million into IBAC and $2 million into the Victorian Ombudsman to ensure these bodies are equipped to complete current investigations before Victorians vote in November. In yet another attempt to evade transparency and integrity, the Andrews Labor government opposed this motion.

A responsible government should stand against corruption. The Andrews Labor government has instead opted to starve IBAC of funding to slow down the multiple corruption allegations it is currently undertaking. The government is desperate to prevent Victorians from knowing the truth about these investigations ahead of the November state election. The government does not uphold principles of accountable, transparent or responsible government. They continuously spin and evade questions from the opposition and journalists. When corruption allegations are referred to IBAC they need to be investigated in a timely manner, and when they concern our public officials it is in the public interest that reports are tabled in Parliament as soon as practically possible.

The provisions in this bill strike an appropriate balance between preserving the rights of those whom IBAC may comment on unfavourably and the public interest in having these documents tabled quickly. As it stands, there are too many legal roadblocks stalling the tabling of IBAC reports, which is allowing corruption to thrive. Victorians first heard about Operation Sandon almost three years ago, and they still have not seen the report. The government may think it is a case of out of sight, out of mind, but Victorians deserve to see these IBAC reports before the November 2022 election. They deserve to know whether their leaders are corrupt, and they must know this before making a decision on whether to vote them in or out. These critical IBAC reports should not be denied to the Parliament or the people of Victoria any longer. I commend this bill.

Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (15:12): There are a number of points I want to make about this bill. This is not a bill that we have arrived at casually or lightly, and it is important to understand that this has been thought through with great care. This does come directly in response to the IBAC Commissioner himself. The Attorney is aware of the correspondence that I have received and she has received from the IBAC Commissioner, and I think it is worth quoting this. This is dated 31 May this year, and he talks about a number of issues that he faces. He talks about:

… the speed with which the litigation is determined is largely under the control of the court—

as it generally should be—

and dependent upon the priority which individual judges are prepared to give to the particular litigation.

He goes on to say:

A recent example of a challenge which is in the public domain arose in IBAC’s Operation Sandon. In that matter, Mr Woodman is challenging aspects of the natural justice process and IBAC has undertaken not to table the report until the matter is resolved. As a result, despite the importance of the recommendations that are likely to be made arising out of that investigation, the completion of the report has stalled.

The IBAC Commissioner says:

The tabling of the special report in Parliament has been delayed until the litigation has concluded and any findings by the court have been addressed.

The commissioner continues:

As such, the timeframe for the tabling of the Sandon IBAC report is now beyond IBAC’s control.

An amendment to the IBAC Act that provided for the expedition of the determination of questions of privilege would aid a much more timely completion of investigations. It is also of interest to note that challenges based on natural justice grounds are limited in the case of at least one interstate integrity agency.

This goes directly to the point made earlier by Mr Gepp. In fact it is not correct to say that no other jurisdictions have those limitations. He goes on:

For example, section 64 of the Northern Territory Independent Commission Against Corruption Act 2017 provides that “an action does not lie against the ICAC—

that is their body—

… to restrain the ICAC from doing anything under Division 7, or to compel the ICAC to do something under that Division”.

He concludes:

Division 7 contains the provisions regarding reports, public statements, and recommendations.

Given recent challenges, these would be useful amendments to IBAC’s governing legislation.

We actually canvassed quite widely and I spoke to a number of very experienced legal people around these matters, and indeed the drafting of this bill brought forward a softer set of powers for IBAC here than the Northern Territory version provides, a softer set of conclusions. We consulted at length with parliamentary counsel, and I thank them and put on record my thanks to them for their advice and the different options they put forward. We did look at the possibility of making section 85 changes but chose not to do so, because we wanted to not limit rights in any unnecessary way. Really all this bill does is two very straightforward things. It first of all does not change the rights of the Supreme Court in the sense of—

Mr Gepp interjected.

Mr DAVIS: No, listen to what I am saying. Just be patient. It does not change them in terms of the clarity with which it signals the view of the chamber, the view of the Parliament, that these are important matters and ought to be given weight, but it makes it clear that the normal rights and so forth ought to be continued in those early clauses. It also makes it clear that at the end of the day natural justice rights do need to be protected, but that is not a limitless point. It is not a limitless outing. There is a balance to be struck which actually enables IBAC, where necessary, to table where it is being tied in legal knots. We know what is going on at the moment with a number of these particular inquiries.

I understand the government’s extreme sensitivity. These matters go right to the core of this government, right to the Premier. He has been to IBAC twice that we know of at least, and the view is that he has probably been a third time as well. The details of those are secret so we do not know the full details of the purpose for which he was there, the details of the way he was dealt with there and whether he was just simply a witness in some matters or whether he is a person of specific interest. Those matters are not in the public domain.

Separately the opposition obviously has the view that the changes made in recent years that unwound some of the powers of IBAC ought to be reversed, but that is a separate matter from what we are considering today. But in terms of the overall powers, this bill does provide some opportunity. Mr Gepp talked about the Scrutiny of Acts and Regulations Committee. I want to indicate to the chamber that SARC did review this, as I understand, on Monday, and his office did write to me at 12.01 pm today—I think question time had begun about a minute before. In an effort to assist the chamber I have responded, and there are copies of that response. I sent that to the Scrutiny of Acts and Regulations Committee at about 3 o’clock today, so I think that is a relatively expeditious response—3 hours is pretty close when 1 hour of it was spent in question time. So, Mr Gepp, there is a response to your—

Mr Melhem: ‘Gepp’—get it right.

Mr DAVIS: Gepp, I am sorry. I am trying to do my best.

The ACTING PRESIDENT (Mr Bourman): Mr Melhem, if you are going to interject, you need to be in your own place.

Mr Melhem: Well, I can’t. There’s someone else in it.

The ACTING PRESIDENT (Mr Bourman): Be that as it may, Mr Melhem, they are the rules.

Mr DAVIS: In response to some of the points made by Mr Gepp before about the pandemic bill, let me be quite clear here. The pandemic bill was rushed through this Parliament in a very, very fast time—

A member interjected.

Mr DAVIS: No, no. It was actually, and the state-of-emergency legislation the year before was rushed through very quickly without proper opportunity for the lower house in the first instance to see the SARC report. We certainly believe that SARC reports ought to be seen by both chambers in a timely way. I have never deviated from that view, and indeed my response to you today, chair of SARC, is to actually indicate quite clearly that I do believe SARC is an important committee—and that, I think, is an expeditious response.

But I do want to make the point, as I do to SARC, that it is for these reasons we believe the bill strikes an appropriate balance. Those about whom serious adverse findings are made must be afforded appropriate and reasonable opportunity to comment, but equally, corrupt persons about whom serious negative findings have been made by IBAC should not be afforded endless protection by a legal merry-go-round designed to effectively block the release of reports and shield corrupt conduct inside government—and indeed outside government—from public scrutiny. That is the balance that is to be struck. I understand it is a balance, and I understand that we need to step carefully in this area.

The three-month provision in this bill, including the retrospective three-month provision, is designed to make sure that there is a reasonable period, and there is also an opportunity for IBAC to provide a longer period if that is deemed appropriate. At the same time, at the moment we are in a position where IBAC is being stymied. Key reports that are not able to be tabled are in effect being covered up, and that is the balance we have got to strike. Now, it may be that some in this chamber would prefer to align themselves with those about whom adverse findings may have been made. That is a matter for them, but I certainly do not believe that is the appropriate way to go. I think we need to strike a fair balance.

Motion agreed to.

Read second time.

Committed.

Committee

Clause 1 (15:23)

Ms SYMES: Mr Davis, who have you consulted with in relation to this bill?

Mr DAVIS: A range of legal people, including obviously parliamentary counsel, who drafted the bill.

Ms SYMES: Mr Davis, have you received advice from the IBAC that, regarding the proposed intention of your bill—if we refer to clause 1, that the purpose of the act is to amend the Independent Broad-based Anti-corruption Commission Act 2011 to facilitate timely reporting by the IBAC—your bill would achieve that purpose?

Mr DAVIS: The IBAC are obviously aware that the bill is in the public domain, but I have responded to the original documentation sent to both you and me by the commissioner.

Ms SYMES: Mr Davis, has the IBAC Commissioner or anyone at IBAC provided you with a view on this bill?

Mr DAVIS: On the need for such a bill, yes, as you understand. You have got the same correspondence that I initially received as well.

Ms SYMES: Have you received advice on your bill and the impact and the effect of the clauses contained in this bill?

Mr DAVIS: I have received advice, but not from IBAC.

Ms SYMES: Mr Davis, did this bill go through shadow cabinet, and can you explain that process?

Mr DAVIS: Ms Symes, as you will understand, cabinet processes and shadow cabinet processes are such processes, so it is a decision of the opposition.

Ms SYMES: I just want to know if this bill went through a shadow cabinet process.

Mr DAVIS: Well, it is a decision of the opposition.

Ms SYMES: Can you clarify what you mean by ‘the opposition’?

Mr DAVIS: The opposition is the opposition, as you understand.

Ms SYMES: Mr Davis, I am just seeking to understand whether this went to shadow cabinet. I do not believe that shadow cabinet attracts the same cabinet-in-confidence-type provisions that government cabinet does, and I am just wondering if this went to shadow cabinet or if this is just a bill that has been presented by you alone.

Mr DAVIS: It is a position of the opposition.

Clause agreed to; clauses 2 and 3 agreed to.

Clause 4 (15:26)

Mr GEPP: Mr Davis, can I take you to clause 4 and in particular to section 85(1) of the constitution. As I mentioned in the debate, SARC noted that:

… Section 85(1) of the Constitution … provides that the Supreme Court of … Victoria shall be the superior Court of Victoria with unlimited jurisdiction.

And SARC made the general observation that:

… the Supreme Court of Victoria may take an unspecified length of time required to determine any applications made to it—

including—

pursuant to sections 59M, 100 and 147 of the IBAC Act.

Was this considered as part of the drafting of the bill?

Mr DAVIS: Yes, and a decision was made not to amend section 85 of the constitution deliberately so. This section in effect signals an intention of the Parliament but does not change the ability of the Supreme Court to make the steps that it considers appropriate.

Mr GEPP: Thanks, Mr Davis. Whilst currently the Supreme Court may take an unspecified length of time, isn’t the effect of your proposed bill that the Parliament can impose a shorter consideration period on the Supreme Court than currently exists under the constitution?

Mr DAVIS: No, that is not what it means. What it means is that the Parliament has signalled the importance of these matters but the Supreme Court is not limited by this in any actual way.

Mr GEPP: I just want to be clear. Section 59N, for example, of the IBAC act:

… provides for the determination of a claim of privilege made by application to the Supreme Court of Victoria under section 59M. Clause [4] inserts subclause (7) after section 59N(6) which states:

It is the intention of the Parliament that an application under section 59M be determined with as much speed as the requirements of this Act and the proper consideration of the application permit.

Can you take me through that?

Mr DAVIS: The proper consideration of the act is exactly what it means, and the Supreme Court determines what proper consideration of the act is.

Mr GEPP: But I am curious as to why you have put the amendment in there. If what you are saying is that the net effect is that there is no change, then I do not understand why then you have the need for the amendment or the wording in the bill as it is currently constructed.

Mr DAVIS: It is a signal to the Supreme Court about the importance that the Parliament attaches to this matter, but it does not limit the Supreme Court in any way.

Mr GEPP: And are you saying that that does not currently exist?

Mr DAVIS: This clarifies the importance that the Parliament attaches to these matters and that expedition is an important matter, but actually it does not limit the capacity of the Supreme Court to do the proper consideration of any application.

Mr GEPP: Thank you, Mr Davis. I just want to be crystal clear about what you are proposing, and that is that you are proposing through this bill that this Parliament publicly states a particular intention around any matter contained in this bill that is being dealt with by the Supreme Court and seeks to give guidance—

Mr DAVIS: It is not an individual matter.

Mr GEPP: Just let me finish the question. And it seeks to provide guidance or clarification, as you call it, to the Supreme Court of Victoria on those matters. Is that what you are proposing? Is that what you are telling us?

Mr DAVIS: Mr Gepp, what I am making clear is that the Supreme Court is not in any way limited, but it is open to the Parliament to express a view about the importance of expedition in these matters, and obviously it is not a specific matter that is referred to in this; it is not an individual case. That is a general point, but it leaves it in such a position that the proper consideration of the application is able to go forward as the Supreme Court sees fit.

Mr GEPP: Thank you, Mr Davis. I am no lawyer, but in all the time that I have been here what I have heard consistently and what I hear consistently around parliaments—state parliaments and the federal parliament—is that when a matter is before a court, a jurisdiction, people in these places are extraordinarily careful not to engage on those matters but in terms of the separation stand back from and allow those jurisdictions, including the Supreme Court, to do their work free of any political views being expressed under privilege in this place. Isn’t that the case?

Mr DAVIS: And this bill is true to those points.

Ms SYMES: Mr Gepp covered off most of the themes that I was interested in in relation to this clause. I guess just to give Mr Davis an opportunity to explain to the house: if it is a signal, what will the practical effect of this clause achieve?

Mr DAVIS: Well, the court will understand that the Parliament is concerned about the pace at which things are dealt with, but it will not in any way influence the decision of the court on any particular matter in the sense that it will be able to give proper consideration of any particular application within its own rules and its own way, as it should.

Ms SYMES: Mr Davis, are you aware that the Supreme Court is not handling these matters appropriately?

Mr DAVIS: Well, I will be very careful in what I say about any particular matter at the Supreme Court and would not want to reflect on any particular matter in terms of the Supreme Court’s decision-making.

Ms SYMES: Well, I appreciate that. I guess I am just a bit perplexed about the problem that we are trying to fix here. But effectively if we have a clause that is just a signal, just a ‘Hey, we’d like you to do something that we’re not sure you’re not already doing’, would you confirm that this clause has no effect and the status quo could remain?

Mr DAVIS: I think I have made the point very clear: it leaves the power and the decision-making in the hands of the Supreme Court, as it should. But Parliament is free to make a point, not about a specific case but a general point, that something is of importance.

Mr GEPP: Sorry to keep harping on about this, but this separation of powers intrigues me. Was that discussed during deliberations in the drafting of the bill by whoever in the opposition was involved in that process, and how did you arrive at the position that you have with that very important principle of separation of powers?

Mr DAVIS: I am very aware of the issue of separation of powers, as is everyone in the opposition, and we are very respectful of the separation of those powers. But we also believe that this is an important step forward.

Clause agreed to.

Clause 5 (15:36)

Ms SYMES: Mr Davis, what is your understanding of what currently occurs in relation to time frames using the ‘reasonable opportunity’ measure?

Mr DAVIS: My understanding is that there are issues with the time frame that IBAC confronts. This is with respect to clause 5; I think you are talking about that now. With respect to that, I think there is some understanding, as you are well aware, that there are some issues of delays and some inability to move reports forward in a timely way.

Ms SYMES: Mr Davis, IBAC often uses iterative processes when dealing with responses to adverse findings, so responses may very well throw up new material and in return result in further adverse findings. Under the proposed clause, would the time frame reset at every new interaction that came from IBAC to individuals—that is, the three months?

Mr DAVIS: You will see, for example, in clause 5(2) substitution in the principal act of ‘or the later time agreed with the IBAC’, which actually provides exactly such an iterative process as you are considering.

Ms SYMES: Mr Davis, do you not think that it is likely that individuals that are subject to adverse findings will seek the maximum time of three months, which may very well be longer than what is the current practice, using reasonable opportunity, and therefore lead to delays in IBAC publishing special reports?

Mr DAVIS: I think the truth of the matter is that in fact some of the processes have become slow and cumbersome and there are issues. It is obviously a time period where a balance has to be struck, and you could make arguments for different time periods, either longer or shorter. We think it is a reasonable balance.

Ms SYMES: But, Mr Davis, on that response you are conceding that clause 5 may in instances delay reports, contrary to the purpose of the title of your bill.

Mr DAVIS: With respect, I do not believe I have conceded that at all. I am just conceding that you could argue for different time periods as an appropriate balance. We think three months is a fair point. But it is pretty clear that this would enable IBAC to move more swiftly than it currently can.

Ms SYMES: In clause 5, what allows IBAC to move more swiftly than three months when the requirement is for individuals to respond within three months? What in this gives IBAC the capacity to make it shorter than three months? If somebody meets the three months, they are meeting the clause, aren’t they?

Mr DAVIS: The reality is that the time periods at the moment are often much greater, as I understand it.

Ms SYMES: How have you formed that view?

Mr DAVIS: Speaking to a range of legal people.

Ms SYMES: Could you clarify what you mean by ‘legal people’?

Mr DAVIS: I am not going to name a group of specific people who have certainly spoken to us, but there are a wide group of people who have spoken to us, and as you are aware, having received similar correspondence—or in fact the same correspondence as me—from the IBAC commissioner, which allows a very reasonable understanding that there are challenges at the current time.

Clause agreed to.

Clause 6 (15:41)

Ms SYMES: Mr Davis, I am hoping that you can explain the effect of your new clause—how you reconcile that the proposed provision may lead to circumstances in which IBAC publishes a report where the Supreme Court later finds the subject of the adverse finding was not provided an appropriate opportunity to respond.

Mr DAVIS: Clause 6, as I think is perhaps best outlined in the second reading and in the actual clauses:

… ensures that a special report may be transmitted to each house of Parliament under section 162 despite any proceedings that are pending in court in relation to the subject matter of the report or any other matter or thing that may be relevant to the report.

You see, the challenge is that in certain circumstances legal machinery may well be used to prevent the tabling of a report. This gives certainty to the IBAC, and I have no doubt it will be exercised responsibly.

Ms SYMES: Mr Davis, I am just unclear how the Supreme Court can grant an effective remedy in cases where it would be too late to provide the person or body appropriate time to respond to the adverse material.

Mr DAVIS: Well, the bill provides an adequate balance for the opportunity for people to respond to adverse commentary but provides capacity for the IBAC to proceed in the circumstances outlined in clause 6.

Ms SYMES: Mr Davis, you would be aware that the current section of the IBAC act, section 162(5), provides:

If the IBAC is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in a report under this section, the IBAC must not include in the report any information which would prejudice the criminal investigation, criminal proceedings or other legal proceedings.

Read together with your proposed new section, does this not create uncertainty about how IBAC is to proceed in circumstances where legal proceedings are pending? Because I do not believe that you are proposing to repeal in any way section 162(5).

Mr DAVIS: I have no doubt that the IBAC will use these additional clauses responsibly in the context of the overall act.

Ms SYMES: But, Mr Davis, doesn’t that put IBAC in a position where, if it proceeds to transmit a report to Parliament containing material that may prejudice legal proceedings, that potentially allows or facilitates the possibility of the court process being undermined and the rights of individuals to seek effective remedy? You are creating a situation of conflict and tension.

Mr DAVIS: I do not believe that that is the case. I believe it will be exercised responsibly in the context of the overall act.

Ms SYMES: Mr Davis, would affected persons be able to seek injunctions prohibiting IBAC from reporting until the legal proceedings are completed on the basis that it would render those proceedings futile?

Mr DAVIS: This would provide greater capacity for IBAC to table reports—that is the point—but at the same time it would be exercised responsibly in the context of the act overall.

Ms SYMES: Mr Davis, can you explain how your clause avoids a contempt of court proceeding that would apply if IBAC transmits a report to Parliament which prejudices a legal proceeding, whether knowingly or not?

Mr DAVIS: This provides IBAC with the capacity to table.

Ms SYMES: Are you proposing any protections against contempt for the Parliament or the IBAC?

Mr DAVIS: IBAC has a clear position under these clauses to be able to table.

Ms SYMES: I guess this is just a statement. Mr Davis, it is my view that your proposed provision contradicts section 162(5) of the IBAC act and creates legal uncertainty and therefore, along with many of your clauses, is a very flawed clause which renders this bill very irresponsible and should not proceed.

Mr DAVIS: With the greatest of respect, we will have to agree to disagree on that matter. The bill has been carefully formulated. It has had good input, and indeed I put on record my thanks to parliamentary counsel for their advice on many of the points in this bill and some of the decisions that we made about striking a fair balance.

Mr GEPP: I just have one question for Mr Davis. Mr Davis, the Scrutiny of Acts and Regulations Committee report tabled yesterday in the Parliament noted that there is no equivalent provision to your proposed new section 162AA in similar legislation elsewhere in Australia. Can you respond to that claim by the committee?

Mr DAVIS: There are certainly no identical provisions, but there are provisions that give greater powers to similar bodies to IBAC in other jurisdictions—to have greater power. Indeed the commissioner in his correspondence to both of us drew on an example in the Northern Territory, which provides that:

An action does not lie against the ICAC:

…

to restrain the ICAC from doing anything under Division 7, or to compel the ICAC to do something …

This is section 64 of the Northern Territory act.

Clause agreed to.

Clause 7 (15:48)

Ms SYMES: Mr Davis, is my reading of the clause that the transitional provisions would have retrospective application to existing investigations correct?

Mr DAVIS: Yes.

Ms SYMES: So the application of the proposed clause means that anyone after commencement who has an adverse finding that they are in the process of responding to would have the clock reset for the three months, because that is when the bill would come into effect and therefore your new provisions in section 162 would allow for that up to three-month period to respond. I guess my question in relation to the impact of this clause would be again coming back to my concerns about the inability of this bill to meet the purpose clause, because I cannot see how that will not possibly slow up processes that I believe you seem quite desperate to speed up.

Mr DAVIS: The Attorney will understand the challenge of drafting transitional clauses in that inevitably a slightly different balance has to be struck from the main clauses in the bill. That is the conundrum in this clause as well. There are several possible scenarios that can be constructed here, but we think that the three-month period is a reasonable balance, again, and consistent. If somebody had been shown some adverse finding the day before the clause came into operation, it would seem unfair that they got substantially less than someone else who was shown a particular adverse finding against them and was getting three months. So that, in a sense, is a default to being even and fair. But at the same time, three months is a reasonable period—again struck as a balance in the overall act—noting that at the moment there is no similar provision of that type that would provide a reasonable period. So it is more likely, we believe, to provide a shorter time period for conclusion of the matter than a longer time period.

Ms SYMES: That may be the case in certain circumstances, but not all, I would propose, Mr Davis, because if this bill passes the upper house and then proceeds to the lower house and people know that they are going to get three months to be able to respond once the bill is enacted, if it was to pass the Assembly, isn’t that just creating a situation where the retrospectivity due to the transitional provisions means that processes are in fact going to go out longer than for somebody that is required to respond under the current requirement, which is ‘in a reasonable period’?

Mr DAVIS: We do not believe it will be longer. In fact we believe it will be shorter, because at the moment people are taking advantage of this capacity to string things out. This at least will put some conclusion on it. At the moment it is possible to drag things out for a very, very long period.

Ms SYMES: I guess, on that, I am just a bit confused by some of your responses to my questions. Is it your view that court processes are holding people up or that people are not responding to adverse findings? This is not in response to any of the court proceedings of the Supreme Court that you have conceded may or may not be as fast as you would like to be; this bill does not change that. This is in specific response to people’s requirement to respond to adverse findings. Currently the terminology for IBAC is that people are to be provided ‘a reasonable opportunity’. I just do not see how three months is going to achieve your purpose clause as opposed to ‘reasonable opportunity’, and particularly when you look at the anomaly that has occurred through your transitional provision, I think that if people are afforded three months and there is an adverse finding for them, most people will go for the maximum.

Mr DAVIS: I am very amenable to a proposal for a shorter period, Attorney, if that is your proposal. We think it has struck a reasonable balance. We do not believe that this will provide on balance longer periods for people responding to adverse material. Indeed we think it will provide generally a shorter period, because there is a defined period. But if your proposal was to provide a shorter period, we would certainly be amenable to discussing that.

Ms SYMES: In response to that, Mr Davis, I guess my concern is that I do not know who your legal people are and who you are getting advice from, because I do not have information that leads me to believe that people being given ‘a reasonable opportunity’ is in fact not working in relation to when people should be responding. You are the one that has come up with three months. I am just exploring why and how you think that that produces a more timely outcome than what is currently contained in the IBAC act, because I certainly have not spoken to anybody that has been asked to respond to adverse findings and I have not spoken to any legal people that are representing people that have been asked to respond to adverse findings. So I guess I am a little bit curious about how you formed the view that your bill will facilitate—if we go to the title of your of bill—timely reporting.

Mr DAVIS: The point is, I think, that it provides a sharp definition rather than an open-ended definition, and in that sense it will assist, again, all of these. There is obviously a balance to be struck, and we can concede the challenge of drafting transitional provisions in this sense.

Clause agreed to; clause 8 agreed to.

Reported to house without amendment.

Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (15:55): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (15:56): I move:

That the bill be now read a third time.

The DEPUTY PRESIDENT: The question is:

That the bill be now read a third time and do pass.

House divided on question:

Question negatived.

Sitting suspended 4.03 pm until 4.22 pm.