Wednesday, 31 August 2022

Bills

Anti-corruption and Higher Parliamentary Standards (Strengthening Integrity) Bill 2022

Statement of compatibility

Dr RATNAM (Northern Metropolitan) (10:10): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Anti-corruption and Higher Parliamentary Standards (Strengthening Integrity) Bill 2022 (the Bill).

In my opinion, the Bill is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Bill Overview

The Bill—

• Establishes the office of the Independent Parliamentary Integrity Commissioner.

• Provides for a Lobbyist Code of Conduct.

• Provides for the registration of lobbyists.

• Amends the Members of Parliament (Standards) Act 1978, to regulate meetings between members of Parliament and certain lobbyists, and provide for a Ministers’ and Parliamentary Secretaries’ Code of Conduct.

• Amends the Independent Broad-based Anti-corruption Commission Act 2011 (the IBAC Act)—

• to expand the jurisdiction of the IBAC so that it can investigate conduct beyond that constituting a ‘relevant offence’, and to explicitly permit the IBAC to investigate conduct it suspects constitutes a substantial breach of the codes of conduct that apply to members of Parliament, Ministers, Parliamentary Secretaries and Ministerial officers; and

• to abolish the restrictive prohibition on the IBAC commencing a corrupt conduct investigation unless it suspects on reasonable grounds that conduct constitutes corrupt conduct; and

• to facilitate the timely reporting of the IBAC.

• Amends the Parliamentary Committees Act 2003—

• to confer functions on the Integrity and Oversight Committee in relation to the Independent Parliamentary Integrity Commissioner; and

• to ensure that joint investigatory committees are independent of government.

• Amends the Public Administration Act 2004, to provide for a Ministerial Officer Code of Conduct.

Human Rights Issues

The right to a fair hearing is provided by section 24 of the Charter. Section 24(1) of the Charter states that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Clause 60 of the Bill provides amendments to section 162 of the IBAC Act. Subsection (5) of section 162 currently provides that—

“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.”

The Bill amends subsection (5) to omit references to ‘other legal proceedings’. This means the IBAC may potentially include information in a report even where it is aware the information may prejudice other legal proceedings, such as civil proceedings.

Therefore, the omission of ‘other legal proceedings’ from section 162(5) may limit a party’s right to have a civil proceeding decided by a court after a fair hearing under section 24(1) of the Charter, where the information contained in a report from the IBAC may potentially prejudice such a proceeding.

The amendment seeks to balance the Charter right to fair hearing, with the public interest in knowing what is reported on by the IBAC, which generally only reports on investigations of broad issues of major public importance. In my opinion this amendment achieves this balance, and there are no less restrictive means of doing so.

The Bill neither exacerbates nor creates the conflict between public investigations, inquiries or commissions and the proceedings of a Court. Rather the Bill reflects the current reality that such public investigations invariably are, or may be, also the subject of legal proceedings, and so seeks to provide statutory flexibility to balance these respective interests.

In Victoria v ABCEBL Federation, Mason J expressed there was a high threshold for a person seeking to enjoin certain conduct of a Royal Commission in a civil matter to establish, ‘a substantial risk of serious injustice as an essential qualification of obtaining relief’. The IBAC has powers similar to those of a standing Royal Commission, and so would likely apply a similar threshold when considering whether or not to transmit a report that may prejudice a civil proceeding.

There is cause to expect that the IBAC will exercise sound discretion in making a decision whether to transmit a report that might be prejudicial to a civil matter. The Bill inserts new section 162AA into the IBAC Act providing that a special report of the IBAC may be transmitted regardless of court proceedings that are pending in relation to the subject matter of the report. However new subsection (2) requires that to transmit a report under section 162AA, the IBAC must provide written notice of the reasons for doing so to the Attorney-General at least 14 days before the intended transmission date. Additionally, new subsection (3) provides the additional requirement that the Commissioner of IBAC must also be of the opinion that there is a significant and reasonable public interest in transmission.

Furthermore, the Bill maintains the restrictions in section 162(5) on the IBAC reporting on matters that could prejudice criminal investigations and criminal proceedings. This is reflective of the existing case law that reflects courts adopt stronger positions against the potential prejudice of criminal matters by public investigations, inquiries, and commissions, than of civil matters.

Second reading

Dr RATNAM (Northern Metropolitan) (10:11): I move:

That the bill be now read a second time.

For too long Victorians have been asked to accept poor standards of behaviour from the people elected to serve them and who they look to for leadership. And we know this has dire consequences as people lose faith and disengage from our democratic system of government.

When our systems lose the trust of the public, it is our community that is left to bear the consequences.

It is time to restore integrity back into Victorian politics.

So today I am pleased to second read this important integrity and anti-corruption bill.

It is a significant bill as it represents a line-in-the-sand moment in Victoria. Are we prepared to introduce necessary and straightforward integrity measures to restore public confidence and trust in the institutions that are supposed to support and serve the public?

Unfortunately Victorian politics risks becoming more known for its scandals than the work of the people in this place to improve the lives of Victorians.

For those of us who genuinely entered politics to try and make things better, to try and help our community and not ourselves, this bill represents a road map to restore the faith of Victorians in their democratic institutions and political representatives.

I know this Labor government has a policy not to support private members bills and has argued that this is because it is the government of the day and is uniquely placed to introduce complex legislation.

Well, I would argue that this is one instance and one point in time where the crossbench is uniquely placed to introduce this kind of integrity and anti-corruption bill, because a government and an executive, that is itself plagued by scandal and in the Premier’s words ‘disgusting behaviour’, attempting to fix its own mistakes represents in itself a conflict of interest, and that means its response is unlikely to succeed.

We only need to look back to 2019 to see how legislation to address its own misconduct was watered down by the government to such an extent it inevitably led to even more misconduct.

So I would ask the government to work with us in supporting this integrity legislation today, as I do the opposition and the crossbench, because basic levels of political standards and integrity should be a non-partisan issue.

Indeed we have deliberately scoped this bill to implement the standards that are immediately necessary, to enable this political consensus, as a first step.

We can no longer wait or delay doing what is necessary. And as we start a new Parliament in only a few months from now, we should ensure that all members, including members of the government and ministers, that are part of that new Parliament will be held to a higher standard of integrity.

I turn to the content of the bill.

The bill will establish the office of the independent parliamentary integrity commissioner with a primary role of investigating possible contraventions of the four respective codes of conduct for members, ministers and parliamentary secretaries, ministerial officers or staffers and lobbyists.

The bill will also establish these codes in legislation and require them to be publicly available where this is not already the case, which is currently every code bar the members code.

The parliamentary integrity commissioner will have powers to demand the attendance of witnesses and the production of documents in carrying out investigations, and there are offences relating to non-compliance with these directions.

The commissioner will be appointed by the integrity minister, where a non-government dominated Integrity and Oversight Committee will have a power of veto.

The parliamentary integrity commissioner role should sound familiar, as it is based on the amendments I proposed in 2019 that were rejected by the government but have since again been recommended by IBAC and the Ombudsman in their Operation Watts report.

Part 3 of the bill provides for the regulation of lobbyists.

Unlike other jurisdictions, Victoria has an unlegislated and ineffectual lobbyist register and code of conduct with weak oversight that contains no sanctions. It effectively operates like a self-regulating honour system for lobbyists and ministers that is not fit for purpose.

The bill will strengthen the code by establishing a legislative requirement that lobbyists and government representatives, including ministers, comply with the lobbyist register and code that will be overseen by the independent parliamentary integrity commissioner.

The bill also adds the following new offences regarding lobbying:

• giving or receiving success fees for lobbying activities

• conducting lobbying activities while unregistered

• ministers or cabinet secretaries, parliamentary secretaries, executives or ministerial officers conducting lobbying activities within 24 months of last holding their position—that is, breaching a cooling-off period).

In each instance the penalty for these offences is 120 penalty units for an individual and 600 for a body corporate.

The commissioner will also keep a lobbying watchlist listing unregistered lobbyists and registered lobbyists that have declared potential conflicts of interests with current sitting members. Where there is such a declared potential conflict the commissioner may provide special procedures for managing the potential conflict between the lobbyist and the respective member, minister or parliamentary secretary.

The commissioner will update and circulate the watchlist to all members, and there will be additional new offences for circumstances where a minister or parliamentary secretary knowingly meets with an unregistered lobbyist on the watchlist or fails to comply with any of the commissioner’s special procedures for managing a potential conflict with a lobbyist.

Part 6 of the bill amends the Members of Parliament (Standards) Act 1978 to legislate a requirement for a ministers and parliamentary code of conduct that sets out standards of conduct, as well as requiring that ministers and parliamentary secretaries publish summaries of their diaries containing who they meet with at least quarterly.

Part 7 of the bill makes amendments to the Independent Broad-based Anti-corruption Commission Act 2011.

Firstly, the bill expands the jurisdiction of IBAC so that it can investigate corrupt conduct beyond that constituting a relevant offence, where ‘relevant offence’ is currently defined as an indictable offence as well as certain common-law offences. The bill replaces the relevant offence requirement for corrupt conduct, providing that IBAC may investigate corrupt conduct that may constitute specified conduct, where ‘specified conduct’ means conduct that would constitute:

• a criminal offence; or

• a disciplinary offence; or

• reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public officer; or

• in the case of any of the following persons, a substantial contravention of an applicable code of conduct by a minister or parliamentary secretary, or a member of the Legislative Assembly or the Legislative Council, or a ministerial officer.

This aligns IBAC’s jurisdiction with that of New South Wales’s ICAC, providing the necessary jurisdiction for IBAC to investigate ministers, members and staffers and the so-called grey level of corruption that is increasingly pervading Australian politics.

Secondly, the bill removes the current restraint on IBAC only initiating corrupt conduct investigation unless it ‘suspects on reasonable grounds’ that the conduct constitutes corrupt conduct. It is a classic catch 22 because determining whether there are reasonable grounds the conduct is corrupt conduct is precisely the purpose of an investigation.

If I may compare the current situation to an Agatha Christie novel, the current IBAC act requires that IBAC gather all the suspects in the drawing room and expose the crime in chapter 1 before launching into the investigation in the closing chapters.

It’s absurd in fiction, and it certainly mustn’t be the reality restricting IBAC’s investigations.

Thirdly, the bill amends the IBAC act to facilitate timely reporting of its reports.

Currently, section 162 of the IBAC act does not specify a time frame for a public body or a person to respond to an adverse finding prior to IBAC transmitting a report, only that IBAC must provide the opportunity to respond. The bill changes this to specify a time frame of three months or a later time as agreed by IBAC.

The bill also amends section 162(5) of the IBAC act so that IBAC may potentially include information in a report even where it is aware the information may prejudice ‘other legal proceedings’ such as civil proceedings. If IBAC intends to transmit a report in these circumstances, it must comply with the requirements in new section 162AA, where the IBAC commissioner may be of the opinion that there is a significant and reasonable public interest in transmission and must provide prior written notice to the Attorney-General.

Finally, the bill makes important changes to the Parliamentary Committees Act 2003 to remove the government’s dominance over the Victorian Parliament’s joint investigatory committees.

Parliament currently has five joint investigatory committees upon which important oversight functions are conferred under the Parliamentary Committees Act.

Like all investigatory bodies the independence and perceived independence of these committees is critically important for them to properly fulfil their functions. As they more often than not oversee and inquire into the actions of the government of the day, they must be independent of the government.

Currently the only committee with membership and chair not dominated by the government is the Pandemic Declaration Accountability and Oversight Committee because of a recent amendment under the Public Health and Wellbeing Act.

It is illogical to recognise the importance of independent investigatory committees in a solitary committee while at the same time allowing the other equally important committees to be government dominated.

The proposed changes will not only improve the general investigatory functions of the committees, but in the case of the Integrity and Oversight Committee it will provide a legitimate veto protection for the executive’s appointment of an IBAC commissioner under the IBAC act and the independent parliamentary integrity commissioner under this bill.

To conclude, recent developments have established that the old business-as-usual standards in Australian politics will no longer be accepted by the community.

It is now in all our interests to no longer accept obfuscation and delay in attempts to improve integrity laws.

In Victoria we have already waited far too long to legislate these essential integrity standards.

There is much more to do beyond this bill.

We need electoral reform with spending caps, truth-in-advertising laws and upper house voting reform. We need something done about freedom of information in this state and the release of documents. We need governments to implement all the recommendations from our standing committees, IBAC, the Ombudsman and the Auditor-General.

But this bill is the first step of this process.

I commend this bill to the house.

Mr TARLAMIS (South Eastern Metropolitan) (10:22): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.