Wednesday, 31 August 2022

Bills

Independent Broad-based Anti-corruption Commission Amendment (Restoration of Powers) Bill 2022

Second reading

Debate resumed on motion of Mr DAVIS:

That the bill be now read a second time.

Mr GEPP (Northern Victoria) (15:23): I rise to speak on the Independent Broad-based Anti-corruption Commission Amendment (Restoration of Powers) Bill 2022 brought by Mr Davis. From the outset can I say that the government supports our state’s integrity agencies and recognises their importance, particularly that of IBAC in being able to use its public examination powers where necessary to undertake its vital function and to promote integrity and expose serious and systemic public sector corruption and misconduct. It is the issue around public hearings which is the main thrust of this bill. Following on from the debate that we have just had, the suggestion is that because of the way that IBAC currently functions there is something untoward that goes on with those processes, that there is something that is not quite right—that it is not transparent. I would argue that it is absolutely to the contrary. Whilst we understand that public hearings—and we have those hearings through our committee work here in this place—do educate the public sector and community about corruption and misconduct issues et cetera and can raise the profile of particular investigations and demonstrate that allegations of corruption are taken seriously and investigated thoroughly, what we also know is that there is the capacity in a public examination for a process that can significantly limit individual rights and can have serious costs for the privacy, reputation and welfare of some of the individuals involved.

Any court, any tribunal or any integrity agency must be mindful as it goes about its work about, yes, its primary objectives of course, and it must at all times remain faithful to those primary objectives. But there has got to be a degree of care and diligence that is undertaken and followed by courts, by tribunals and by agencies when they are conducting their work to ensure that the individuals concerned have their rights to privacy and representation, for example, properly preserved, because the consequences of a public inquiry where it goes horribly wrong can be devastating for the individuals concerned. It is for those very reasons that the Independent Broad-based Anti-corruption Commission Act 2011, which is the subject of the bill brought by Mr Davis to the house today, requires IBAC to consider on reasonable grounds whether holding a public hearing would cause unreasonable damage to a person’s reputation, safety or wellbeing. The current act does not preclude IBAC from holding public hearings. What it does do is it establishes the grounds—the tests, if you like—for conducting their business in a certain way and ensuring that all of those things have been thought through prior to the process commencing, because, as I say, the consequences of getting it wrong can be devastating.

Can one then reach the conclusion that if an examination is being conducted, by IBAC in this instance, not in a public hearing but in a private process it is any more or less legitimate in terms of the outcomes of the particular investigation? I would argue that it does not impact at all the legitimate outcomes of any inquiry, and to suggest that somehow having everything in the public domain will ensure that any impropriety is dealt with through the public process I think is a little bit cynical and not something that I support.

As I say, the IBAC act does set a very high bar—and it should—for the conduct of its public examinations, because these processes that IBAC undertake are different to other types of investigation by other organisations and other agencies in that they are coercive, they are inquisitorial and they do by that very nature restrict and limit the rights and freedoms of individuals. What the act currently provides for is some balance in the situation where somebody finds themselves before the IBAC in an examination that may well be coercive and inquisitorial by nature and is in some instances. The act provides that the processes have to be followed in a certain manner if there is concern about the individual—the damage to reputation, the damage to privacy—and the welfare of that individual.

But this bill seeks to remove the procedural fairness safeguards, if you like, currently in place that are designed to protect individual rights, including the obligation that IBAC consider those things on reasonable grounds. I will repeat them because they are important: that conducting an examination would not cause ‘unreasonable damage to a person’s reputation, safety or wellbeing’ and that the conduct being examined constitutes:

serious corrupt conduct; or

systemic corrupt conduct; or

serious police personnel misconduct; or

systemic police personnel misconduct.

The bar is there for a very good reason. It does not limit the capacity of IBAC to inquire into a particular matter, matters or individuals; in fact they are able to do that. But what it does say is that unless you are absolutely certain of these things, you should be very, very mindful of the rights of the individual to privacy, you should be very, very mindful of the individual’s reputation and you should be very, very mindful of the welfare of the individual, and if you cannot satisfy all of those tests, if you like, reasonably, then what you should do is conduct your business in a manner that preserves the rights of those individuals concerned when it comes to those important points.

What the government says is that this requirement properly balances the individual rights and welfare of the individual, as I say, whilst still ensuring that IBAC can discharge its vital functions to investigate and expose corrupt conduct and police misconduct. But when you look at the second-reading speech of Mr Davis, you would be entitled to think that something else was going on. I will just read the opening salvo of Mr Davis’s second-reading speech. It goes to assertions that were made about certain conduct in the last debate:

The Andrews Labor government is embroiled in a series of corruption and maladministration crises: the red shirts rorts, the corrupt behaviour of transport agencies and the crooked issues with multicultural grants being squandered on factional and party-political objectives.

That was his opening salvo in relation to this bill.

But of course what he says in this place and then what he says outside of this place are two totally different things. The bill is not designed to do anything but keep Mr Davis’s unrelenting—I will give him credit: he is like a dog with a bone when it comes to this stuff. He will not let go, and he will stop at nothing to create the illusion that something is occurring where it is not. He will come out and he will say, ‘Well, if we hold all of these inquiries in the public domain, then surely there can never be any question about any inappropriate conduct or any suggestion that any inquiry is on the nose’. I am not sure who he is having a swipe at there. I am not sure if he is having a swipe at the government or he is having a swipe at the agency itself—he is having a swipe at IBAC—and suggesting that because of the way that IBAC is conducting its investigations, it is in on some little secret, some little ruse, some little pyramid scheme, whereby it is aiding and abetting because it is hiding things behind private inquiries.

Of course that is a nonsense. That is an absolute nonsense. We have full faith in all of our investigative agencies, including IBAC, all of our courts and all of our tribunals. These organisations act with absolute integrity, and I reject the assertions that Mr Davis makes. I confirm what I have just said with the second part of Mr Davis’s contribution to the second-reading speech where he says:

This bill restores certain critical examination powers to the Independent Broad-based Anti-corruption Commission stripped from the agency by Daniel Andrews and the Andrews Labor government …

It has become clear that stripping the commission of key powers to hold public hearings was a defensive move by—

the Andrews government—

… to close down future or forthcoming examination of Andrews Labor government ministers by IBAC.

On what planet do you come up with this stuff? I think he has watched a bit too much telly in the middle of the night when you have bad crime TV happening, I do not know, maybe at 2 or 3 in the morning when these theories are being espoused by knuckleheads on the telly. Again it is this illusion that he wants to create, this environment that something untoward is going on. He has got no evidence. He has got no facts. He has got no figures. But again he wanders into that field, picks up a freshly laid cow patty and just flings it and hopes that some of it sticks.

I am not quite certain if he is having a go at one of us or both of us—if it is at IBAC or the Andrews Labor government or maybe both. Maybe it is both. But if you the follow the logic of Mr Davis’s contribution when introducing this bill through his second-reading speech, you would have to reasonably conclude that somehow IBAC and the Andrews Labor government are in cahoots to deny natural justice in any of the inquiries that it is undertaking, and I think that is an absolute nonsense. Nothing could be further from the truth. These people are independent, as they ought to be. They are independent by law. Any suggestion that the removal of the requirement of IBAC to take into reasonable consideration the welfare of individuals that it is examining, their rights, their reputation and their privacy—removing those things and removing the capacity and the requirement for IBAC to take those things into consideration—will give us a better product at the end of the day, gee whiz, is a bit of a stretch, isn’t it. That is a bit of a stretch. I am not quite certain how Mr Davis has arrived at that proposition.

The IBAC Commissioner himself publicly recently submitted to the Integrity and Oversight Committee’s ongoing inquiry into integrity agencies’ management of witness welfare that this requirement:

… is a good criteria. It is a protective criteria, which enables the integrity agency to focus on whether or not unreasonable damage to reputation or unreasonable damage to welfare will occur …

There you have the head of IBAC himself saying that this particular aspect of the act is a good set of criteria that requires IBAC to properly focus on the individuals concerned and to ensure that they are not doing unreasonable damage to the reputation or the welfare of individuals concerned.

We have not got IBAC calling for this change. The government is not proposing any change to the act. So where has this come from? We have just had Mr Davis attack Mr Barton for the motion that he introduced prior to this and query the motivations of Mr Barton, asking: where did that come from? Well, where has this come from? This has come from the land of David Davis. That is where this has come from, where in his mind there is this unrelenting assault on the integrity agencies and the suggestion that there is impropriety in the system. And he will not let it go, despite the fact that he has got no evidence and despite the fact that there are no figures, there are no facts, there is no-one else in the world who is coming out calling for this stuff except for Mr Davis. What I would strongly suggest to the opposition is that unless they are going to act on the last motion—and I assume that the will of the house will prevail and we will see something on the evening news where Mr Davis resigns, but in the event that he does not—

Ms Crozier: Good try.

Mr GEPP: It is not a good try, Ms Crozier. What we have had—

Ms Terpstra: On a point of order, Acting President, I cannot hear Mr Gepp with the level of interjection that is coming from Ms Crozier opposite. I would actually like to hear Mr Gepp’s contribution in silence, because the noise is constant and irritating.

The ACTING PRESIDENT (Mr Bourman): Mr Gepp to continue without any assistance.

Mr GEPP: Thank you, Acting President. It is not a try-on about Mr Davis. Mr Davis will come in here regularly and talk about the will of the house when the house makes a decision. On wacky Wednesday we usually have a thousand document motions that we are dealing with, and he will often refer back to decisions of the house. So I assume that the will of the house this afternoon will prevail and we will have some change overnight on the opposition benches, but let us see if the integrity of those opposite holds up and they accept the overwhelming decision of the house.

Again I would say that I am really confused about where this bill has come from. There is nobody that is calling for this change. In fact the head of IBAC, Mr Redlich himself, is saying that this criteria is a good set of criteria because it requires the agency to focus on the welfare, the reputation and the rights of the individual—because could you imagine if they got it wrong? Can you imagine if they got it wrong and the lawsuits that would follow thereafter, given that many of its inquiries are done in that coercive and inquisitorial manner? There are already restricted rights; can you imagine if they did not take these things into account and they acted improperly and got it wrong? You can just imagine the fallout for the individual concerned.

So the government will be opposing this bill. The amendments do not, we believe, do anything to strengthen the IBAC act, nor do we hear any calls coming from any quarter, except for Mr Davis’s laptop, calling for this sort of change. We are very concerned that lowering the threshold for public examinations in this way risks causing serious harm to an individual’s reputation, safety and welfare, and we will not support anything that diminishes those rights and opens up the possibility for individuals to be harmed and have their rights stripped away.

The bill seeks to repeal the prohibition on IBAC publicly announcing a public examination prior to the Victorian Inspectorate having the opportunity to consider the written reasons for IBAC seeking to make an examination public. The Victorian Inspectorate is an important independent safeguard. What IBAC have to do is they have to go through and make their assessment on whether holding that public examination will potentially damage the safety, welfare or reputation of the individuals concerned—whether holding an examination in the public arena is justified and the risks associated are acceptable. If they reach that conclusion, then there is a very important role for the Victorian Inspectorate, another independent safeguard, to ensure that the IBAC is using its significant coercive powers—and they are significant—to compel witnesses to provide evidence responsibly.

We have a number of steps that are very, very important to ensure that whenever an inquiry is held in the public domain, it is done so in a manner that has been properly considered and reviewed by a further independent body, because of the nature of the coercive powers that currently exist in the act for IBAC, and they are substantial. If anyone has ever appeared before IBAC, they know that they are substantial powers, as they should be. We do not resile from that, because they are very serious matters that IBAC investigates. Where IBAC takes the decision to conduct an inquiry in the public arena, then these matters of the rights of the individual, the safety of the individual and the reputation of the individual are very, very important. IBAC, like everybody else, should have to justify when they are proposing to diminish those rights by holding an inquiry in a public way. They should have to provide support for that decision and have that decision reviewed by the Victorian Inspectorate. They do so, and it is a process that is supported by the IBAC Commissioner himself, Robert Redlich.

I have got to say in conclusion that I am really struggling with this bill. I remember the last IBAC bill that Mr Davis brought to this place. On the surface the duck was just moving across the water very, very calmly, but when you put the camera underneath, the feet were going a million miles an hour. Of course last time what he was proposing to do was to challenge the separation of powers. He was really calling those things into question. It was not until the bill was examined by experts through the Scrutiny of Acts and Regulations Committee process that we uncovered exactly the intent, impact and effect of Mr Davis’s bill. I have the same level of concern with the bill that is being proposed by Mr Davis in this instance. It is not being called for by anybody else. The act currently preserves the rights of individuals to privacy, to safety, to welfare, to reputation. Where those rights are to be diminished, IBAC needs to seek support from the Victorian Inspectorate, who will review that decision.

It is only at that point—when we have had two independent agencies tick all of those boxes—that processes proceed. That is a very thorough process. It is a proper process because these are significant matters, and what we should not be doing is passing bills in this place that are nothing more than a political folly on behalf of Mr Davis, again chasing that elusive rabbit down a hole which simply does not exist. I reject the bill.

Ms TERPSTRA (Eastern Metropolitan) (15:50): I am very happy to speak in opposition to this bill, and I have had the benefit of listening to Mr Gepp’s contribution, which was a very fine contribution and very roundly set out the scope of the debate around this bill. Today is a day for non-government business. We do often refer to it as ‘wasted Wednesday’ or ‘wacky Wednesday’, whatever you like to call it. But here we are again with this Independent Broad-based Anti-corruption Commission Amendment (Restoration of Powers) Bill 2022—and what is in a name? Of course it is quite a ridiculous name for a bill, because it seeks to restore powers that really, coming from those opposite, who have absolutely no credibility on anything to do with matters of—

Mr Rich-Phillips: We only set it up.

Ms TERPSTRA: But you have got no credibility on anything to do with matters of integrity because, if you like, I could actually start to talk about perhaps Mr Guy’s record on planning matters and all those sorts of matters that were automatically waved in without proper and due process down there at Docklands and those sorts of precincts.

What this government wants to do is make sure that we protect people who may have to give evidence in IBAC proceedings. The reason is, obviously, if someone is having allegations made against them or people have to give evidence, the evidence they give should not cause damage to their reputation—and we have heard a bit about this in the news recently. Sometimes when people have to give evidence before an IBAC hearing it can cause immense distress to those people because of the matters that IBAC investigates. They are there to interrogate the facts of witnesses, and people can feel that they are under extreme pressure. This can cause immense personal distress. So with these things it is important to get the balance right, and this bill certainly does not do that.

Public hearings are an important function of IBAC processes. It is important for the public to be able to educate themselves about the processes which IBAC undertakes to inquire into matters of alleged corruption, because we know corruption in the public service and those sorts of things can lead to the undermining of trust, confidence and faith in government. That is why integrity agencies such as IBAC are set up to inquire into and, where appropriate, make recommendations and findings about what they find and then can recommend things to change so it can strengthen things or how individuals, if you like, should be dealt with if they are found to be guilty of corruption. So public hearings are an important aspect of that, and those public hearings are there to educate the public sector and the community about corruption and misconduct issues in public office, and it can raise the profile of investigations and demonstrate that allegations of corruption are taken seriously and investigated thoroughly.

It is something that, if you look at our system of government in Victoria—and you cannot really compare it federally, because there is no federal IBAC or ICAC, for example—or if you look at other countries around the world where there are no strong integrity frameworks, you can see how quickly people who occupy public office can use those spoils of public office to their advantage and to disadvantage others. So it is critically important that the public be allowed to see these processes and how they operate, but at the same time the balance has to be struck about the treatment of witnesses and people who may be called in to give evidence in these public examinations. As I said, public examination processes can significantly limit individual rights and can have serious costs for the privacy, reputation and welfare of the individuals concerned. So it is a balancing act, and it is a fine balance because we want to make sure that the integrity agency is able to do its job in a way that is unfettered, but at the same time we have got to make sure that we balance the rights of individuals. Again, even with somebody being called to give evidence at a hearing, sometimes people can make assumptions about witnesses being called to give evidence and the nature of that evidence that they are giving in regard to any investigation. We have to make sure that people’s reputations are not damaged as a consequence of them giving evidence. As I said, there is a fine balance to be struck here.

In contrast with this bill, the IBAC act that we have sets a high bar for the conduct of these public examinations because they are coercive, they are inquisitorial in nature and process, and that does pose limits on the rights and freedoms of individuals. As we know, for example, an individual who may be called to give evidence in the IBAC process cannot even talk about that; they cannot mention that to anyone. There are reasons for that. The process that we have, the act that we have, we have faith, trust and confidence in, and it strikes the right balance. But this bill that has been brought by those opposite seeks to remove procedural fairness safeguards currently in place that are designed to protect individual rights, including the obligation that IBAC considers on reasonable grounds that conducting a public examination would not cause unreasonable damage to a person’s reputation, safety or wellbeing and that the conduct being examined constitutes either serious corrupt conduct, systemic corrupt conduct, serious police personal misconduct or systemic police personal misconduct.

There is a process that requires IBAC to undertake an analysis of the reason or the need for public hearings, and it involves procedural fairness. The reason why we need to afford people procedural fairness is that, if there is an adverse finding or consequence that might be made, people be given the opportunity to respond to that. So this is a balancing act. If IBAC in considering the need for a public examination was of the view that unreasonable damage to a person’s reputation, safety or wellbeing would be caused, that is something that might mitigate against having a public examination.

As I said, this requirement properly balances individual rights and welfare while ensuring that IBAC can discharge its vital functions: to investigate and expose corrupt conduct and police misconduct. These are critically important aspects, because we want to make sure that the Victorian community and Victorians at large can have trust, faith and confidence in our public services and certainly our police force to be able to carry out the critical jobs that they do and that if there is corrupt conduct or misuse of public office, there are processes and options available to expose that.

The IBAC Commissioner, the Honourable Robert Redlich QC, publicly submitted to the Integrity and Oversight Committee’s ongoing inquiry into integrity agencies and the management of witnesses that it is:

… a good criteria. It is a protective criteria, which enables the integrity agency to focus on whether or not unreasonable damage to reputation or unreasonable damage to welfare will occur …

So again, it is a balancing act. It requires the consideration of these criteria and balances and weighs appropriately the need for public examinations with the need to ensure that a witness does not sustain unreasonable damage to their reputation or to their welfare. It is critically important. There are two aspects there.

But this bill goes further than that. It proposes to repeal the requirement that public examinations would only occur where the conduct in question may be serious or systemic. In effect it is almost a lowering of the bar, because ‘serious and systemic’ is quite a different test that is being proposed to that which is a consideration of unreasonable damage to a person’s reputation. This goes back to what I was saying earlier about protecting individual rights. The test that is being proposed under this bill would just be about whether it is serious or systemic. It does not in fact afford the individual any protections and it does not even propose a consideration of a procedural fairness requirement, which is quite a longstanding and widespread common-law right that many people enjoy regardless of whether it is in this bill or not. Procedural fairness is a long-held legal principle.

It is quite an interesting approach taken in this bill by those opposite. By lowering this threshold for public examinations it risks causing serious harm to individuals’ reputations, safety or welfare in situations where the alleged conduct does not justify these risks.

Sitting suspended 4.01 pm until 4.21 pm.

Ms TERPSTRA: With the material that is sought in this bill, I outlined just before the break a number of changes which we say would undermine the important work that IBAC is doing. But I will continue by saying the bill seeks to repeal the prohibition on IBAC publicly announcing a public examination prior to the Victorian Inspectorate having the opportunity to consider the written reasons for IBAC seeking to make an examination public. The Victorian Inspectorate is an important independent safeguard that ensures that the IBAC is using its significant coercive powers to compel witnesses to provide evidence responsibly, and removing this requirement could potentially undermine the Victorian Inspectorate’s important safeguarding role by enabling IBAC to create public expectation of a public examination in advance of the Victorian Inspectorate’s assessment. This risks reputational damage to both agencies where the Victorian Inspectorate considers that public examination is unwarranted.

The Victorian government is committed to working with the integrity agencies to improve their legislation so that it supports them in performing their important work. Any changes need to be carefully thought through, and we also need to make sure that appropriate consultation occurs with relevant parties to ensure they will achieve the intended purpose. These amendments do not achieve their purpose. They erode the important protections provided to those under investigation by IBAC and undermine key safeguards, and it is for these reasons that the government does not support these amendments. As I said, they go to lowering the threshold for a test that IBAC has to consider in regard to the conduct of public examinations, and they also remove any protections for an individual to have procedural fairness afforded to them. For those reasons the government is not supporting this bill.

I might just say in conclusion—I have only got about 3 minutes left on the clock—the opposition really does not have any credibility on these matters when it comes to integrity policy. In introducing this bill the opposition want to claim that they are the champions of integrity. I could really go on for much longer than 3 minutes about why that just does not stack up, but really the IBAC that exists today is because of this government’s financial and legislative support to ensure that IBAC has the powers and resources that it needs to do its important work. It is this government that has supported the important work that IBAC does and made sure it has the appropriate legislative framework and support that it needs to do its important work and deliver to make sure that Victorians can have trust, faith and confidence in our public service and systems and, as I mentioned before, that police and public service bureaucrats can do the work they do and we can have faith and confidence that corruption is kept to a minimum and, if corruption does exist, that it can be investigated appropriately.

The opposition’s plans for IBAC were so disgraceful. Their key driver, eminent lawyer Douglas Meagher QC, told the Age in March 2012 that ‘the government would be well advised to save its money and abandon the project’ because of how hamstrung and poorly resourced the model was. That was back then. This is really just an attempt by those opposite to play politics with IBAC and again to politicise investigations. It appears to be as undercooked and poorly developed as their attempts to create IBAC in the first place. I mean, this has been a theme this week. We come in here and get lectures from those opposite about what we should be doing on integrity and the like, but we have seen today a motion in this house about Mr Davis and his behaviour—appalling, appalling behaviour—and those opposite want to lecture us about integrity. It really is a shambolic state of affairs, and it is a complete joke.

We have a proven track record of increasing the powers and scope of IBAC’s oversight functions, and we are committed to that. We committed to it in 2015. We have been committed to a robust integrity system, including providing a range of additional powers to IBAC, since 2015. As I said earlier in my contribution, Victorians should have trust, faith and confidence in our public service and police force to do the job that they need to do, and they should have trust in our integrity agencies to root out corruption if it is there, to prosecute those individuals and to make sure that individual rights, procedural fairness and the like are afforded to individuals who may be called to give evidence. With that, I will conclude my contribution there but encourage the chamber to reject this motion.

Mr TARLAMIS (South Eastern Metropolitan) (16:26): I move:

That debate on this motion be adjourned until later this day.

Motion agreed to and debate adjourned until later this day.