Wednesday, 8 February 2023

Bills

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

Second reading

Debate resumed on motion of David Davis:

That the bill be now read a second time.

Harriet SHING (Eastern Victoria – Minister for Water, Minister for Regional Development, Minister for Commonwealth Games Legacy, Minister for Equality) (11:22): There is a fair bit to get through in relation to Mr Davis’s bill. One of the things that I want to do today in putting a variety of considerations onto the public record is to take us through some well traversed but nonetheless very relevant territory as it relates to the integrity framework in Victoria. It was not in fact that long ago that it was on this side of the Parliament, on the government benches, that then Leader of the Government Gavin Jennings moved and indeed was successful in carrying a series of amendments to the integrity framework.

Those amendments – amendments in a very long list of amendments after the shambolic efforts of the former coalition government to establish an integrity framework – introduced the offence of serious misconduct in public office. They introduced the offence of serious misconduct in public office to the remit of the integrity framework and the jurisdiction here in Victoria not because the opposition supported these amendments but despite their opposition. Mr Davis was amongst those who opposed the introduction of the offence of serious misconduct in public office from the reach and contemplation of the integrity framework in Victoria. He opposed it. The very member of this place who is now moving – from his soapbox, from his high horse, from his ivory tower – a series of amendments which purport to make changes to the integrity framework, because those who are opposite know better, literally has on the record a vote opposing the introduction of the offence of serious misconduct in public office. This is an embarrassment to those opposite.

When I think about the opposition’s policy document – bear with me here, because it is in the mists of time but nonetheless relevant – in the lead-up to the 2010 election there was an integrity report and a review that was undertaken. Indeed it found that there were changes required to the integrity system in Victoria. As I recall, the shiny blue document issued by the coalition at that time began with a phrase borrowed – I think to Shakespeare the Bard’s detriment – from one of the greatest orators of our time, one of the greatest storytellers of our time. It started with ‘Something is rotten in the state of Victoria’. This was a very significant starting point from which the now opposition leapt off the blocks to purport to have the upper hand, the high ground, when it came to integrity. Yet what did they do? They introduced an integrity framework in Victoria which was so woefully inadequate that it required more than two dozen amendments. If there is any reason to doubt the opposition’s credibility when it comes to the bona fides of improving an integrity framework in this state, it is there in the very history of the coalition’s own actions. Mr Davis is not even listening to this contribution. And if anything speaks volumes to the cavalier attitude taken by those opposite to matters of integrity, it is the fact that when the detail is presented, when his own voting record is presented, he is quite literally nowhere to be seen.

I look at the way in which this bill has been brought to the chamber and the second-reading speech that Mr Davis has incorporated into Hansard, and it is laden – it is dripping – with hyperbole. Hyperbole is true to form for Mr Davis, and indeed for those opposite, because when it comes to analysis of the way in which the integrity framework operates in Victoria, hyperbole is about as good as it gets. The record of those opposite speaks for itself, but Mr Davis feels that it is necessary to come in and add rhetorical flourish in the form of his second-reading speech.

One of the things that Mr Davis has missed is the point of what the integrity framework actually does. In the second-reading speech – I will take those who are following along intently with this particular matter to the text of the second-reading speech – the restoration of the power of the commission to hold public hearings has the effect, to paraphrase Mr Davis:

… of repealing from the principal act the requirement for an IBAC examination not to be open to the public unless the IBAC considers on reasonable grounds a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing; the conduct that is the subject of an investigation may constitute serious corrupt conduct –

again I take you back, by reference to what I said earlier, to the fact that Mr Davis opposed that inclusion within the integrity framework –

or systemic corrupt conduct; or serious police personnel misconduct; or systemic police personnel misconduct.

Mr Davis effectively wants to remove a requirement that integrity processes be undertaken subject to the caveat of reasonable grounds. This is what we are dealing with here. And if anything betrays the true motivation for Mr Davis’s effort in moving this particular bill, it is the fact that he wants to reach into the integrity and oversight process and remove the requirement for an integrity body to be required to consider various matters on reasonable grounds. This is an astonishing claim by the opposition of infusing the integrity framework with a greater degree of rigour. Removing reasonable grounds from the consideration of an integrity and oversight body is a staggering departure from the way in which judicial and quasi-judicial functions and systems have operated – to paraphrase someone from some time ago – for hundreds of years. Mr Davis has form when it comes to failing to understand the way in which integrity frameworks and systems operate here in Victoria or indeed around the country, but quite frankly he does not care, because the substance and accuracy of the way in which the system currently operates is not relevant to the purposes of bills like this one.

Victoria has worked assiduously, notwithstanding opposition, notwithstanding nay votes from those opposite, to enforce and tighten the system of regulation and of integrity oversight in this state for the last eight years. We have been here on many occasions talking about the funding, talking about the assistance and talking about the scope for independent integrity agencies to undertake their work. We have been here on numerous occasions talking about the way in which the system operates, not only to provide a measure of transparency and accountability as it relates to individual matters but also to undertake education around the importance of integrity, on the importance of opportunities for whistleblowers to speak out and on the importance of opportunities for public education to be undertaken such that people know and indeed have confidence in public decision-making. Whether it is a departmental matter or indeed undertaken in the course of government decisions, that provides a measure of confidence that is necessary and appropriate in the circumstances of public administration.

Mr Davis loves to talk about integrity, and I am not going to stand here today and cast aspersions on perhaps the matters that Mr Davis would not want discussed in this chamber around integrity; those matters are on the public record. Indeed in this place, as Dr Bach would well know, I have made numerous comments about matters that may be somewhat uncomfortable for Mr Davis to countenance, and therefore I am surprised, as indeed everyone else would be surprised, that one of the first matters pursued by Mr Davis in this Parliament is to revive a matter which for him would cast aspersions, for example, on the way in which he conducts himself or indeed his affairs in the course of public office.

When I think, for example, about the way in which those opposite when in government have sought to run as fast as they can from transparency and accountability, I see that it is only obvious that once in opposition they will do everything that they can to deflect from the reality of the situation of their own shambolic affairs when they sit on these government benches and indeed when they are going about their own matters. When I think about the ways in which conduct is exercised, or indeed not, by those opposite, there is a long list – a very long list – a list that is longer and would take longer than the 19 minutes that I have available to me to go through. If I could table various reports that are on the public record, I would, but I do not have them available to me right now. They have been canvassed exhaustively, and I do not want to cause Mr Davis any further embarrassment. I think he probably achieves that objective all on his own.

What I want to do in talking to these particular matters that Mr Davis has canvassed in this extraordinary monologue that purports to be a second-reading speech is to talk about the way in which public investigative hearings function. As integrity and oversight committee heads and indeed agency heads have noted – from the Victorian Inspectorate through to the Independent Broad-based Anti-corruption Commissioner, through to the Victorian Ombudsman and through to the Office of the Victorian Information Commissioner – the matters relating to privacy and indeed to dignity and indeed to the reputation of witnesses and of parties to investigations and inquiries are well canvassed. I would encourage Mr Davis and indeed anyone else who wishes to know about the framework by which tests operate to determine the application of principles of reasonable grounds and damages to personal reputation, safety or wellbeing to go over the many reports that have been issued in the course of the last two parliaments and that have been the subject of commentary from those integrity agency heads to edify and to in fact shed light on the fact that reasonable grounds are a necessary part of the way in which an appropriate balance is struck.

One of the things that public investigative hearings do not guarantee is procedural fairness, and procedural fairness, as we well know, is something which applies to these integrity agencies. It does not, for example, apply to parliamentary committees, but it does apply to the way in which integrity agencies conduct their investigations and inquiries. It is important that public hearings are considered very carefully and indeed that the measure of confidence and indeed utility of a decision to undertake a public hearing is the subject of a test, for example, of reasonable grounds. Public hearings do not in and of themselves guarantee a finding of corruption or of misconduct on the allegations that the investigation is reaching into. Public hearings do not guarantee confidence in the process, and nor in my view do they encourage or achieve protection or promotion of integrity in our institutions. These objectives, to my mind, are met through a range of other functions, responsibilities and powers enjoyed by and deployed by integrity agencies in this state.

These legislated safeguards and protections that I have spoken about enable us to strike a very careful balance. The importance of equilibrium in these processes should never, ever go without saying. We know, for example, that sensitive information that is disclosed in a way that cannot in fact be the subject of refutation in the moment or after the fact can nonetheless create an enormous level of damage or an enormous level of innuendo, of unproven allegation, irrespective of whether that integrity agency makes findings on that particular matter, on that particular evidence. It is in fact the casting of material into the public domain which fails to actually achieve the objective that Mr Davis’s bill purports to achieve whilst also causing significant damage at the same time.

Again, integrity agency heads have been on the record repeatedly about the fact that a decision to conduct and to hold public hearings is never taken lightly – and nor should it be. The point here is: nor should it be. I hold integrity agencies to the standards that they purport to operate because to do anything else would be improper and inappropriate. I, along with what I hope would be everybody else, apply the standards of absolute independence of integrity agencies in the discharge of their functions and their powers. To reach into the work of integrity agencies in the conduct of their inquiries and their investigations is in fact to undermine and to destroy in reality or by perception the nature of independence which integrity agencies enjoy and indeed deserve to have and be able to deploy in the course of their functions.

When we talk about this particular bill, we need to ensure that everybody understands that the purpose of the IBAC is to investigate, amongst other things, allegations of corruption and misconduct and to undertake investigations that support the promotion of integrity and public confidence in this state. The only way to do this, as I have indicated, is to strike that careful balance between the potential infringements of rights and of standing of individuals who may be investigated and any other individuals who may be involved. The welfare of witnesses and participants is also of crucial importance.

I have spoken in this chamber on numerous occasions about the importance of independence of our integrity agencies. I have also spoken about the importance of systems of analysis and of inquiry by this Parliament, including through the Integrity and Oversight Committee, which do not reach into the role and the functions of integrity agencies in the discharge of their functions. To do that, whether on some purported platform of merit or transparency or in fact for political pointscoring and retail campaigning opportunities, undermines the very system that we on these government benches have worked so hard for, despite opposition to the introduction, for example, of the offence of serious misconduct in public office from those opposite.

We see here a bill which is intended to create yet another conversation about matters which integrity agencies have investigated, have made findings in relation to, have acquitted and indeed in the case of at least one matter determined should not be a platform by which the politicisation of referrals to integrity agencies continues. I am paraphrasing one particular head of an integrity agency here, who could not have been clearer. The theme that ran through commentary in the latter part of last year to various matters referred to integrity agencies was that they should be referred for proper purposes, that they should not be referred simply as an effort to grab another headline or another front page, that integrity bodies need to be able to do their work – of which they have much – without interference, without straw men, without decoys and without dead cats.

Those opposite do not seem to have cottoned on to the fact that when they purport to reach into the functions of integrity agencies they create a very, very nasty precedent indeed, a precedent which undermines public trust and confidence, a precedent which takes us away from the individual and specific objectives of the more than two dozen amendments moved and passed by the last two governments under Premier Daniel Andrews. It creates a nasty precedent, which obviously Mr Davis and those opposite have seen is a worthwhile bet, because they can proceed with a second-reading speech/random monologue that makes all sorts of claims that are a tired routine from those opposite. What I suspect may well happen from today is that Mr Davis may well hit social media and both of his followers may well receive a tweet or two that casts aspersions on this government’s commitment to integrity, which purports to say that we are shirking accountability and responsibility, and he will ignore the fact that we have worked assiduously to create and indeed to sustain and indeed to fund and indeed to resource integrity bodies around this state to establish and to maintain a system of accountability. Mr Davis has left the chamber now.

Members interjecting.

Harriet SHING: I would suggest that Mr Davis’s commentary as he exited the chamber may well be unparliamentary, but I am not going to seek to interrogate that at this stage with the time that I have left. We need to make sure, as I said earlier, that that balance is struck and struck carefully. We need to understand the impact of processes and proceedings on the lives, the welfare, the wellbeing and the reputation of those who participate in them.

The very fact that this bill is called ‘restoration of examination powers’ creates a pretty significant link here to the improper purpose for which this bill is being brought. This is a political bill. This is a bill which in fact ignores the matter of the Baillieu government establishing IBAC in 2011 – an IBAC which was so impotent as to require at least two dozen sets of amendments. It is a title which invites cheap social media along the lines of what I have just described, which invites people to gloss over the efficacy or otherwise of the safeguards that the Liberals say are unnecessary, indeed saying that these protections should be walked back. These protections are important, and there are countless people, not just in the community, not just in our judiciary, in our executive and indeed in our parliaments but more broadly, who understand the importance of that equilibrium and of that balance. I would go so far as to say, to my point earlier, the heads of integrity agencies are on the record about the fact that this balance exists appropriately, is executed carefully and is discharged with a very keen understanding of the human impact that inquiries and investigations have upon the people who are either subject to that inquiry or indeed assisting with it. The name of this bill suggests that the bill in fact is going to restore IBAC’s examination powers. That is not the case – again, more poetic licence, more rhetorical flourish from Mr Davis. If nothing else, he is consistent. IBAC’s powers to investigate, which are coercive and inquisitorial, remain intact.

I would encourage anybody who is listening to this debate to begin from the starting point of what is already embedded in the integrity system in Victoria, what is already there – the systems and frameworks, objectives and parameters that inform the integrity system and are deployed by the heads of integrity agencies and their officers in meeting the objectives prescribed in various legislation, prescribed in those more than two dozen sets of amendments moved and passed, notwithstanding opposition, by this government over the last eight years. What is being attacked in this particular bill are those safeguards, which are so important in considering the impacts of public investigation on individuals involved against the public interest in a public hearing. There is nothing to stop an integrity agency from issuing a report once various components of procedural fairness have been satisfied and have been met and appropriate opportunities have been given for people involved in those matters to provide responses prior to the issuing of such reports, to run a commentary, to reach certain conclusions and to make findings and indeed recommendations. We have seen integrity agencies do this numerous times. There are many, many reports on the public record which have outlined the basis for various inquiries, have outlined the evidence presented to those integrity agencies or indeed have revealed as part of an inquisitorial process the findings reached in relation to that material and recommendations that are put to government, including to agencies, about the way in which matters germane to integrity and germane to proper, appropriate and considered decision-making can and should be achieved.

The Integrity and Oversight Committee focused on witness welfare in a report tabled in the Parliament last year. There is really good reason as to why the Integrity and Oversight Committee sought to inquire into witness welfare, and I note for those who are new in this Parliament and those who are new to the subject matter of integrity that I was the chair of the Integrity and Oversight Committee for much of that particular process. The inquiry was undertaken by the Integrity and Oversight Committee – an independent committee of the Parliament, a committee not bound by procedural fairness and a committee in fact which was not empowered to investigate the substance of individual inquiries, which was not empowered to reach into the matters being contemplated as part of individual inquiries and which was only equipped and should only ever have been equipped to deal with systems within those integrity agencies as they relate to general matters.

David Davis interjected.

The PRESIDENT: Order! Mr Davis!

Harriet SHING: Because for the Integrity and Oversight Committee to reach into the carriage or substance of individual inquiries would be to run roughshod over the very independence that those opposite are now seeking to say is sacrosanct. It was incumbent upon the Integrity and Oversight Committee not to reach into individual matters.

David Davis interjected.

Harriet SHING: Mr Davis knows this better than anybody else, and yet now we see, as the first effort of this Parliament, Mr Davis bowling up yet another matter that ignores the reality of oversight by the Parliament, which is not substantive in nature and which can only go to various matters of systems, of administration and of the carriage of general issues around the integrity framework, and instead he just makes up yet another fable that he can run on social media.

What a disgrace. What an indictment of the scant regard that those opposite have in real terms for integrity. I would encourage Mr Davis and indeed anybody else to read section 7 of the Parliamentary Committees Act – read it very carefully, Mr Davis. I have made public comment on section 7 on numerous occasions, and it cannot be that an integrity and oversight committee or indeed any other committee can reach into individual matters or permit or facilitate a circumstance whereby individual matters are the subject of analysis, findings, conclusions or recommendations by an integrity agency or its investigations themselves. We cannot support this bill.

David Davis interjected.

The PRESIDENT: Thank you, Mr Davis. You will get a chance to respond to the second-reading debate at the end of it.

Sonja TERPSTRA (North-Eastern Metropolitan) (11:53): I also rise to make a contribution in opposition to this bill as proposed by Mr Davis, the Independent Broad-based Anti-corruption Commission Amendment (Restoration of Examination Powers) Bill 2022. While I was sitting in the chamber listening to Ms Shing’s excellent contribution – a complete dismantling of the fiction that is behind the reasoning for this bill proposed by Mr Davis – I also had the benefit of being able to quickly read through the comments and the second-reading speech that Mr Davis made on 20 December last year. It is extremely concerning to note – and I will use the word again – the level of fiction that is really weaved throughout the comments. We just had an election the outcome of which saw the return of the Andrews Labor government, and unfortunately this really is about Mr Davis not liking the outcome of that and wanting to relitigate things that the good people of Victoria had an opportunity to make a decision on just recently, in November.

So again here we are in the first week in Parliament having to revisit these sorts of fictions. It is really an abuse of process to continue to relitigate things or litigate things continually which really are, as Ms Shing put it, a politicisation and a political attack on this government. It is nothing more and nothing less. It is incredibly obvious and transparent that Mr Davis hopes that if he keeps saying things that really are untrue, somehow they might miraculously become true and there will be some sort of magicking about alternative facts all of a sudden maybe becoming a reality. The facts of the matter are that that just does not happen.

It is really concerning to me because our integrity agencies are incredibly important. We need to have our integrity agencies able to have oversight and appropriate mechanisms to review decisions of government. Again, this bill really does smack of someone who just does not like the outcome and so keeps relitigating things. Honestly, it is embarrassing. The commentary and the second-reading speech and the lengths that Mr Davis goes to to try and create alternative facts – it is like if you say something often enough then it becomes true – are just not reality. It is just ridiculous.

As I said, the government supports Victoria’s integrity agencies and we recognise the importance of IBAC being able to use its public examination powers when necessary to undertake its functions to promote integrity and expose serious and systemic corruption and misconduct. IBAC has done some amazing work in this space. There has been a range of integrity inquiries not only into government but into a range of government agencies, and I commend them for their fantastic work. But again, this is really about creating some kind of fictional bogeyman, that ‘government bad’ – everything we do, ‘Government bad, government bad’ – and we need to have some kind of inquiry into it. Some of these matters that were touched on in second-reading speech – I am not going to mention the name of it because I really do not want to ventilate it again and draw any attention to the ridiculousness of some of the stuff that is in here – were some of the most well-ventilated and inquired into matters in the lead-up to the last election, with multiple agencies inquiring into some of these things and turning up nothing. I am not sure what purpose trying to bring this bill before the house would achieve. As I said, it would not somehow magically alter facts that have been well ventilated and well examined by a number of agencies.

It is an abuse of process and a waste of this chamber’s time, and I also point out to the opposition that not only is it a waste of this chamber’s time but it is a waste of taxpayers funding and money to put something forward just simply as a political stunt. It is a stunt to continue to try and ventilate these issues when really, as I have said before, they have been the most looked over, picked over, by many agencies and there is nothing to see here. Mr Davis wants to talk about integrity but, honestly, Ms Shing went to multiple examples of those opposite and their poor record in this particular area. It is something that is a waste of this chamber’s time. This government has a strong record of making sure that the integrity agencies are funded appropriately to do the work, the very important work, that they need to be doing.

Let us be clear about this. Public investigative hearings do not guarantee procedural fairness, and Ms Shing talked about this in her contribution. Public hearings do not guarantee a finding of corruption or misconduct based on allegations that the investigation is subject to. Most importantly, public hearings do not guarantee public confidence in the process nor the protection and promotion of integrity in our institutions. But not only that, there is no denying that the public investigative hearings can have a significant impact on the individual’s rights, with serious costs for the privacy, reputation and welfare of the individuals involved. That is why, and Ms Shing also touched on this, there needs to be a balancing of considerations when integrity agencies are conducting public hearings, because there was a terrible situation that we are all aware of, which was very public last year, where somebody took their life. That is something that is a very extraordinary and serious consequence. These integrity agencies are well placed and, as appropriate, will balance a number of considerations in determining whether hearings should be public or not.

We seem to have a situation where Mr Davis wants to politicise everything that our integrity agencies ever do or do not do simply because of the fact that he does not like the outcome of the work of some of the inquiries that were undertaken, and of course I note that he takes extreme exception to the work of Integrity and Oversight Committee and the report on witness welfare, which Ms Shing presided over and that committee inquired into. You cannot just say, ‘I don’t like the outcome, so I’m going to continue to try and relitigate and change the facts and create new facts’, that somehow that is going to magic away the outcome, that we might get a different outcome. I know the good people of Victoria will not listen to that. They see it for what it is, and I look forward to continuing my contribution after question time.

Business interrupted pursuant to sessional orders.