Wednesday, 8 March 2023

Bills

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

Second reading

Debate resumed on motion of David Davis:

That the bill be now read a second time.

Jacinta ERMACORA (Western Victoria) (16:35): I understand the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022 is identical to one proposed by the coalition during the 59th Parliament. I guess the only thing that is different is that we have a new government returned with an increased majority. This provides new government MPs like me with an opportunity to respond to this proposal.

The opposition’s intention with this bill is to ensure the timely tabling of Independent Broad-Based Anti-Corruption Commission reports in Parliament and to expedite their tabling while preserving relevant protections of the rights of those upon which IBAC may comment unfavourably. While it is agreed that it is in the public interest that these reports are tabled without delay and recommendations implemented expeditiously, it is not the role of this chamber or this Parliament to dictate to the courts the speed at which they must operate. This shows disregard for the machinery of the Victorian court system and procedure.

The bill proposes that IBAC publish reports before the subjects under investigation within those reports have had a chance to fully exhaust their appeal options regardless of court proceedings. Section 85 of the Constitution Act 1975 vests unlimited jurisdiction in the Supreme Court of Victoria as the superior court of Victoria. It is the appropriate forum for applications made pursuant to the Independent Broad-based Anti-corruption Commission Act 2011.

The current IBAC act contains the following provisions: sections 59L to 59N, which address the process for determining claims of privilege or secrecy requirements in the Supreme Court in IBAC investigations; sections 100 and 101, which permit applications to the Supreme Court to determine an issue of privilege in relation to IBAC’s investigative powers; and sections 146 to 148, which provide for the appropriate process of making an application to the Supreme Court to determine any questions of privilege or applications for secrecy regarding examinations. Each of these sections also sets out the proforma with which the Supreme Court must consider each application.

This bill attempts to insert the phrase ‘determined with … speed’ into three of these clauses, and yet there is no further clarification on what ‘speed’ is defined to be. How long is that? Is it speed in the context of the Supreme Court, which may be months or even years? That is the very issue that has prompted the opposition to introduce this bill. In fact it already happens that all court hearings have administrative hearings which set down time lines for important dates for filing documents. This is an integral step in procedural fairness, and the court will set as much time as is necessary so that the hearing for the issue is expeditious and effective. This bill does not attempt to amend the constitution, as it cannot, so this bill has no authority to change the power and procedures of the Supreme Court, and nor should it.

Most concerning about this bill is the disregard for procedural fairness. Clause 6 proposes to allow IBAC to publish reports which contain sensitive materials despite them being potentially the subject of a court challenge. This bill would explicitly remove those rights under section 162 by introducing an exception in section 162AA which undermines its purpose, which is to protect the person’s right to due process and a fair hearing.

The wording and use of the phrase ‘may’ leaves the ability for IBAC to release reports without limits and constraints. It may be that IBAC deem all reports may be released in whatever circumstances they see fit. As we all know, IBAC deals with serious allegations of corruption, which can have significant ramifications for the individuals being investigated. To allow publication of such sensitive information before an individual is able to protect their privilege would be a flagrant disregard of due process and fair trial.

Compare this scenario to a criminal trial for a serious criminal offence investigated by Victoria Police. If the police release their brief of evidence prior to the trial, does it seem likely that an impartial jury could be selected and the trial be heard fairly and expeditiously? I say it does not. The trial would struggle to proceed and may even be subject to appeal. This is an issue that my electorate already struggles with, as anonymity in small communities is hard to come by. Should an appeal go ahead, the bill would render much of the material for the appeal prejudiced and in doing so compromise the Victorian court system itself. If you apply a practical application of this scenario, a proposed early provision of reports may lead to a case in which IBAC publishes a report where the Supreme Court later finds the subject of the adverse findings was not provided an appropriate opportunity to respond. This is a huge undermining of the IBAC process. In this scenario it is not clear how the Supreme Court would grant an effective remedy, as it would be too late to provide the person or body the appropriate time to respond to the adverse material. I suspect that this change may make some IBAC rulings vulnerable to appeal to a higher court.

The proposed provision also appears to contradict section 162(5) of the IBAC act, which prevents IBAC from including in its reports any information which would prejudice a criminal investigation, criminal proceedings or other legal proceedings. If the IBAC is aware of a criminal investigation, any criminal proceeding 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.

These concerns are not new to the opposition, as this bill in this exact form was debated in this very chamber nearly nine months ago. The same bill was introduced by Mr Davis on 7 June 2022. Again, the previous bill is identical to the current bill, clause for clause, word for word. I further remind the chamber that the Scrutiny of Acts and Regulations Committee, SARC, has already considered proposed amendments in this bill and tabled a report on 21 June 2022. It seems unnecessary that such debate should ensue regarding the constitutional and human rights concerns surrounding this bill without any amendment taking into account consideration of the recommendations of SARC.

When I look at this proposal I can only assume the message from the coalition is ‘We don’t mind if we prejudice a criminal investigation or legal proceedings. We don’t really care about the human rights of Victorians.’ The bill before us today gives us a window into what the coalition might be like if they were in government. They would be prepared to compromise the integrity of the court system, prepared to compromise the rights of citizens to due process before the law, prepared to provide meddling direction to independent bodies and prepared to throw out the protections against prejudicial reporting by IBAC.

We only need to look at their friends and colleagues in Canberra this week, where a number of former coalition government leaders have been called before the robodebt royal commission to give evidence. Their systematic attack on some of our most vulnerable citizens, resulting in many cases of devastating stress and in some cases suicide, was all to fulfill an obsession to prove a false ideology that low-income people are ripping off the government. But it was the complete lack of moral fortitude displayed by Stuart Robert when he admitted that he lied in public statements about the program so as to protect his government at the time that really painted the picture for us. The Supreme Court will follow due process –

David Davis: On a point of order, Acting President, this is a bill about corruption and IBAC and so forth and about timely reporting, but it is not a bill about federal matters. It is not a broad debate in that way, it is a debate about timely reporting. It is nothing to do with Mr Robert in Canberra, and I think the member is diverging into obscure terrain.

Harriet Shing: Further to Mr Davis’s point of order, he has gotten to his feet on many occasions to talk about the fact that subject matter has been covered in a broad-ranging way when it suited him in relation to other motions. The subject matter that Ms Ermacora has covered thus far is entirely relevant to the subject matter of the bill as proposed. Timely reporting is germane to the direct question of jurisdiction, and on that basis I would suggest that Ms Ermacora is well within the bounds of the bill as proposed.

The ACTING PRESIDENT (John Berger): Ms Ermacora, could I draw you back to the subject title, thank you.

Jacinta ERMACORA: The Supreme Court will follow due process, so Parliament should uphold the same standards. The principal tenet of responsible government is the separation of powers: government, Parliament and court. The courts should not dictate how the Parliament writes law, and the Parliament should not dictate how the courts determine cases. By keeping the powers separate, we have a counterbalancing system of checks and balances.

This bill compromises procedural fairness and natural justice. It compromises future court processes and it contradicts the confidentiality protections built into the current IBAC act. This bill renders IBAC vulnerable to politicisation at the expense of Victorians who have a human right to procedural fairness and due process. Victorians have a right to expect that an independent body actually has the authority to act independently from government, or in this case from coalition meddling.

Ryan BATCHELOR (Southern Metropolitan) (16:48): I am very pleased to rise and speak on the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022, moved by Mr Davis. In reflecting on the bill and the title of the bill, it reflects a naming convention that seems to wish to include in the title of the bill probably some words that might not accurately reflect what the consequences of this bill are. It is very much a contrivance and very much an attempt to, I suspect, paper over some of the serious consequences that the passage of this bill would have for the operation of Victoria’s integrity agencies. In fact it may well be that a better title would be the ‘Independent Broad-based Anti-corruption Commission (Dispensing with Procedural Fairness) Bill 2022’, because that is the effect that this bill would have if it passed the Parliament today.

The bill would, by allowing the publication of reports that are still the subject of matters that are before the courts, undermine the role that the Supreme Court has to make determinations about how it considers matters before it should be resolved before such matters are relayed to the Parliament in the publication of special reports from IBAC. We think that this would fundamentally change not only the way that IBAC operates but how subjects of IBAC reports have their rights under the rule of law to procedural fairness and how they would operate, and then fundamentally how the courts themselves operate in the way that they have the inherent powers to determine the proper conduct of their own proceedings. We are of the view that those matters are important and things that should be protected, because in our democracy procedural fairness – the rule of law and the role of the courts – is something that the government does believe in quite strongly.

The other thing that the bill does – and we were reflecting on the debate that we had on the companion bill that Mr Davis moved; I forget the rather long title of that particular bill off the top of my head, but I am sure people will be able to remind me at some point if it is in fact at all relevant – is that the combined effect of the amendments in the two companion bills that Mr Davis is seeking would fundamentally attack and change the way that this government and this Parliament and this democracy deal with integrity matters. It wants to take and change IBAC from a forum that is diligently and professionally investigating and eradicating corruption in the state of Victoria, underpinned by a framework bound in the rule of law, and that is able – and we have seen this quite effectively through IBAC being able to demonstrate its ability to undertake investigations – to produce reports and seek and achieve prosecutions. The combined effect of these proposals was to change the nature of –

David Davis interjected.

Harriet Shing: On a point of order, Acting President, Mr Davis has just made a remark which is entirely unparliamentary, and Mr Batchelor would be well within his rights to seek that it be withdrawn.

Ryan BATCHELOR: To be honest, if that is the best that he has got, then he is even sadder than I thought. Acting President, I ask that that be withdrawn.

The ACTING PRESIDENT (John Berger): Mr Davis, do you withdraw that remark?

David Davis: Which remark?

The ACTING PRESIDENT (John Berger): The remark that you made about Mr Batchelor’s father.

David Davis: Why am I withdrawing the remark, Acting President? He cannot just gratuitously take offence.

The ACTING PRESIDENT (John Berger): The member has taken offence to the remark that you made about his father.

David Davis: Acting President, is this a new ruling: any matter that a member takes offence to? It has got to be objectively offensive. His father was involved in the Nunawading by-election. It was crooked. It did lead to changes in the law in fact. It did actually lead to every how-to-vote card in the state being required to be registered. His father has a shocking record.

The ACTING PRESIDENT (John Berger): These additional comments are not helpful, Mr Davis. Please, I ask that you withdraw your comment.

David Davis: In which respect, Acting President? I am just trying to understand which standing order has been offended here.

The ACTING PRESIDENT (John Berger): Mr Davis, I have asked you a second time –

David Davis: I withdraw.

The ACTING PRESIDENT (John Berger): Thank you.

Ryan BATCHELOR: Thank you, Acting President. It is a shame that people who would otherwise purport to be concerned about integrity in politics like to spend their time on such matters. I am not going to be distracted by them, because quite frankly it speaks more about them than it does about anybody else. As I remarked, if that is the best that they have got, they are even sadder than I thought.

However, to get back to the substance of the debate rather than the distraction, the problem I think that Mr Davis has is that what he is proposing through this legislation will fundamentally undermine the procedural fairness for those people who are potentially named in the IBAC reports, and IBAC reports can have very serious ramifications for the individuals who are identified in those reports. For the public to have confidence in IBAC’s findings and in IBAC itself they must have confidence that those investigations and those reports will be able to be dealt with subject to the rule of law and a proper assessment by the courts. We know that there are concerns with, as Ms Ermacora said, proposed clause 6 of the bill, specifically as set out in proposed section 162AA:

The IBAC may cause a report to be transmitted to each House of the Parliament under … 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.

We know that there are problems with this clause because Mr Davis’s bill is so bad that he has had to move an amendment to strike them out of his own bill. That just gives you an insight into the ramshackle approach that Mr Davis is taking to the legislation he brings here. I do not know why he is so sloppy in the way that he has proposed legislation that he has to move amendments to his own bill to take out words and features and clauses, which would have the fundamental effect of undermining the rule of law and undermining procedural fairness in this place. So I look forward to him getting up and moving these amendments in committee and wiping the egg off his face because of the errors that he has made in the course of this debate. He may be able to do that, he may be unable to do that. That in the end is up to him.

The other matter that I wish to go to that we have had concerns with in the course of this debate is in relation to proposed clause 5, the amendments to section 162(2). The amendments propose a three-month time line for individuals who are the subject of adverse findings in an IBAC report. We have a concern here that rather than resulting in more timely reporting, there is a risk that this time line may result in longer delays. The bill proposes a three-month time line. However, for many investigations that IBAC undertakes three months is longer than IBAC currently provides for responses to adverse findings. So the proposals in the bill that we see here today may actually result in a –

The ACTING PRESIDENT (John Berger): Excuse me, Mr Batchelor. Mr Davis, could you please sit down. I cannot hear a thing that is being said here.

Ryan BATCHELOR: Thank you, Acting President. The consequences of the provisions in this bill may result in a longer time being taken in the course of IBAC investigations by inserting a three-month requirement. That is yet again an example of the bill having consequences that we are not interested in and that we do not think accord with good process, but also it fundamentally demonstrates the sloppy approach that Mr Davis has taken to this part of his work.

The last matter that I want to draw the chamber’s attention to is the effects that the proposals in this bill will have more generally. I will leave aside the question of proposed clause 6, which does not know whether it should be in or out of the bill, and we look forward to the explanation as to why that is so – I was going to say something else – monumentally determined to be in requirement of amendment, and I will go beyond the problems that we have seen in relation to the timely reporting elements of the bill. What this bill would also do by enabling IBAC to publish reports that contain material that are the subject of a court proceeding not only may create inconsistencies with other provisions of the Independent Broad-based Anti-corruption Commission Act 2011 but also fundamentally is at odds with provisions in the Victorian constitution related to the unlimited jurisdiction of the Supreme Court. Those procedures and practices are well set out under the constitutional provisions that we have that set the appropriate precedent for the Supreme Court to be the superior court of Victoria with unlimited jurisdiction to determine matters that it sees fit.

The operation of the proposed clauses and the amendments that Mr Davis seeks to insert would have the purported effect of enabling the matter to be determined at speed, which fundamentally acts in contradiction to the role the court itself has in determining the course of its own proceedings. We think that is a very dangerous precedent for the Parliament to get into, saying that there are parts of the broad administration of Victoria’s governing systems that could be set up and seek to undermine the role the Supreme Court rightly has in being the most appropriate forum to handle these matters and being the most appropriate place to determine whether or not the court itself has fully considered the issues before it and whether the court itself has determined that the matters before it have been resolved to its own satisfaction. With all due respect to those who are running those proceedings in the Independent Broad-based Anti-corruption Commission, it is, under our constitution, the Supreme Court’s jurisdiction to determine whether it has done its job properly, not somebody else’s. That is a principle that we should all stand up for. That is a principle that is undermined by Mr Davis’s bill, which we in the government cannot stand for.

Over the course of this debate I think we have demonstrated the problems that the bill before us has, the sloppiness that clearly has gone into its creation and the consequences that we would see for the integrity framework here in Victoria, where we would take a system that is doing its job eradicating, investigating and trying to stamp out corruption and turn these matters into a political sideshow, which is the last thing that integrity in Victoria needs. Mr Davis’s bill is the last thing that integrity in Victoria needs.

Michael GALEA (South-Eastern Metropolitan) (17:03): I rise to speak on the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022, and in doing so I oppose the bill. It seems that Mr Davis has a keen interest in introducing ill-conceived amendments to integrity legislation that would undermine our integrity bodies, as my colleague Mr Batchelor was just saying. This is also not the only IBAC bill on the notice papers; indeed I spoke on another one just earlier today. And this bill bears a striking – to wit, word-for-word identical – resemblance to a bill in the previous Parliament. And as I am sure will be made clear – indeed, frankly, it already has been made clear I think today – the IBAC bills that are being debated today are not well considered. They do not substantially and do not meaningfully improve the operation of our integrity bodies. The proposed amendments are flawed. They undermine various aspects of IBAC and are not in the public interest overall.

Discussion, meaningful reviews, consultations and reforms to the Independent Broad-based Anti-corruption Commission Act 2011 and other integrity bodies and measures are important aspects of ensuring our institutions operate with integrity and that serious and systematic corruption and misconduct are exposed and properly dealt with. Good legislation and reviews of that legislation are key to ensuring public confidence in our institutions as well as ensuring confidence in those integrity bodies themselves.

The Victorian government is committed to our integrity bodies, including IBAC, and that includes strong oversight and investigation mechanisms, which are critical to our democracy. This government has a strong track record of supporting and strengthening IBAC through both legislation and support for the integrity body, and I refer to my previous speech today on that subject.

As this bill addresses the powers of IBAC, in part claiming that IBAC under this government does not have strong powers or has somehow lost its powers, I would like to look at this government’s record on IBAC, as our record demonstrates the continued steps undertaken by this government to promote IBAC, to strengthen it, to provide greater integrity and oversight towards various aspects of the commission and to strengthen confidence in IBAC itself – a record that is one of strengthening IBAC integrity and accountability laws. In recent years the opposition has sought to undermine IBAC both through ill-conceived legislation such as this and parliamentary gamesmanship and statements that fundamentally undermine and seek to discredit IBAC – statements uttered in both this place and in public, most notably in attempts at cheap political pointscoring. This is another attempt to turn IBAC into something that can be used as political football rather than as a thorough integrity body.

The Victorian government last year committed to acting on the recommendation of the report into donations and lobbying, which was released by IBAC last year. This government has committed to acting on and implementing all 21 of the Operation Watts sweeping recommendations, including establishing a parliamentary integrity commissioner to receive and investigate complaints about possible misconduct by MPs. The commissioner will be armed with robust powers and resources, including the power to recommend sanctions. It also includes work to establish a joint parliamentary ethics committee, comprised of equal numbers of members from the Legislative Assembly and here in the Legislative Council. It will ban MPs from employing close family members in their electorate offices, and the ministerial code of conduct will also be amended to clarify that ministers must ensure that the public resources made available for performing their public duties are not used for party-specific purposes, further to which electorate officer recruitment, management and supervision will be reviewed alongside grant administration to ensure greater transparency and better processes.

The Victorian government introduced and legislated the Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Act 2019, which expanded and clarified the types of public sector improper conduct that a person can disclose, increased the pathways for making disclosures and simplified confidentiality obligation while protecting disclosures from legal costs and better enabling them to seek support services.

This government also legislated the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016, which allowed IBAC to investigate misconduct in public office, lowered the IBAC investigation threshold, removed the requirement that IBAC has prima facie evidence in a relevant offence from IBAC’s investigation threshold and provided the Auditor-General with follow-the-dollar powers.

As the government continues to give IBAC broad powers to conduct its investigations, there has also been substantial funding to ensure IBAC has the resources necessary to operate effectively. The state budget of 2022–23 has invested $32.1 million over four years in additional funding to IBAC on top of its annual base funding, with a record funding of $61.9 million in the 2022–23 financial year. By the end of the forward estimates IBAC’s funding will be double what it was when we came into government in 2014. Funding for IBAC is in proportion to the public sector workforces they hold to account. This rightfully means that funding is higher in Victoria than in other states. The budget boost to IBAC provided funding equivalent to $217.30 per Victorian public servant in 2022–23, which is compared to $78.40 per public servant for New South Wales’s ICAC whilst undertaking a similar number of investigations. I am pleased that the Andrews Labor government is committed to continuing to work with IBAC and to considering their suggestions to make sure that they have all the resources that they need to do their job as effectively and efficiently as possible.

Speaking of the serious flaws in this bill, the same flaws existed when the bill was introduced in the previous Parliament. Clause 6 of the bill, proposed section 162AA, seeks to allow IBAC to publish reports that contain materials being challenged in court. IBAC reports can have serious ramifications for individuals identified in those reports, and I again refer to my speech earlier today on this subject. For the public to have confidence in IBAC’s findings and in IBAC itself, individuals subject to an investigation must be provided with an appropriate opportunity to respond to the findings and to challenge those findings they consider to be inaccurate. The act balances the vital role that IBAC undertakes in investigating and exposing corruption and misconduct with the rights of individuals to be able to review and provide comment on any adverse findings that IBAC considers may apply to them, before that material is made public.

The bill at several points also undermines the safeguards and protections that are actually key to the IBAC act, considering the strong coercive powers that IBAC has. The proposed provisions within this bill would potentially lead to subjects of an investigation losing the ability to challenge the actions of IBAC and have the Supreme Court determine if natural justice and procedural fairness are being provided, as my colleague Mr Batchelor referred to in his earlier contribution. A person subject to an IBAC investigation may be successful in procedural fairness proceedings, but under the proposed amendments a report could be published – under Mr Davis’s proposed section 162AA – even if a person is later found to not have been afforded procedural fairness. The subsequent remedy of the court would be rendered futile and undermine the practical protections of procedural fairness, which is a fundamental tenet of our legal system.

Provisions within this bill could see IBAC at risk of being in contempt of court through the transmission of a report that prejudiced a court proceeding. How is putting IBAC in a situation of being in contempt of court a good thing? How is it a responsible thing? It is not. Does it promote integrity? Does it enhance oversight? Does it boost confidence in our institutions? It does not, it does not and it does not. The proposal to enable IBAC to publish reports that contain material that is the subject of a court proceeding may create inconsistencies with other provisions in the IBAC act. Doing so would also place IBAC at risk of being in contempt of court.

IBAC currently has sound provisions for how to apply to the Supreme Court to determine secrecy or privilege requirements. The amendments to the IBAC act in this bill seek to throw out those provisions and create a form of competing interests between IBAC on the one hand and the Supreme Court on the other hand – amounting to a situation where IBAC would be putting its reporting requirements above the procedures and operation of the Supreme Court and its judicial responsibility. The procedures that this bill would remove are well established and set the appropriate precedent that the Supreme Court is the superior court of Victoria with unlimited jurisdiction, as is established in our state’s constitution. So by enabling IBAC to publish reports, including material that is the subject of a court proceeding, in the manner proposed in this bill is a major flaw that would undermine IBAC as an institution and would undermine public confidence in IBAC as well. If IBAC were then to proceed to table a report to the Parliament which may then prejudice legal proceedings, it would undermine the integrity of the court process and the rights of individuals to seek effective remedy from the court.

In seeking to remove these provisions the opposition will set the Supreme Court at odds with IBAC and will inevitably undermine one or both bodies, most likely both. Already we have seen ill-considered amendments within the bill discussed earlier today. Those provisions would see the safeguards and protection of witnesses and the subjects of investigations being undermined. As I referred to in my contribution earlier today, this is a very, very serious subject. Whatever findings are arrived at, especially for someone who is found to be cleared, it is absolutely unacceptable for anyone to be in a position of putting themselves at harm due to the process that they are going through. As I mentioned earlier, this government has already made some reforms to support people as they go through IBAC proceedings. To have people thinking that the best option for them is to take their own life is unacceptable, and this bill, just like the other opposition bill, adds to that risk. It does not address it; it actually adds to that risk. It actually further puts at risk people who are going through IBAC proceedings.

It does seem that in this bill and in the bill that was debated earlier the opposition is putting its desire to change IBAC to suit how it believes it should operate above the measured and considered operation of the body itself. In doing so these amendments would undermine IBAC’s function as an integrity body and of course they would undermine public trust in IBAC overall.

The bill also proposes a three-month time line for individuals to respond to adverse findings in an IBAC report, as proposed by clause 5 in new section 162(2). Rather than resulting in more timely reporting, there is actually a risk that this time line may result in longer delays. The bill proposes a three-month time line –

The ACTING PRESIDENT (Sonja Terpstra): Mr Galea, thank you. Your time has expired. It is now time to move to statements on reports.

Harriet SHING (Eastern Victoria – Minister for Water, Minister for Regional Development, Minister for Commonwealth Games Legacy, Minister for Equality) (17:15): I move:

That this matter be adjourned until later this day.

Motion agreed to and debate adjourned until later this day.

Business interrupted pursuant to sessional orders.