Wednesday, 8 February 2023

Bills

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

Second reading

Debate resumed.

Sonja TERPSTRA (North-Eastern Metropolitan) (12:53): I will return to making my contribution on Mr Davis’s bill, the Independent Broad-based Anti-corruption Commission Amendment (Restoration of Examination Powers) Bill 2022. I might just go to some technical issues, but before I do that I must just reflect on the extraordinary events that we just heard in question time and some of the commentary around Mr Davis trying to again cast further aspersions upon various ministers in their portfolios here today. It just underlines and underscores the importance of our integrity agencies and how if those opposite were ever in government what an absolute shambles and shemozzle our integrity system would be. I could go on. I mean, of the list of really strange or interesting decisions that were made in the past while those opposite were in government, I think I can reflect on some. In Ventnor there was a land deal. Also there were some of the questionable zoning decisions that were made previously, I think, when Mr Guy in the other place was in fact the planning minister. So again, if we want to talk about integrity in terms of –

David Davis: On a point of order, President, this is quite a specific bill, and of course members are entitled to some latitude in drawing broader conclusions and broader points, but we are now heading into a series of very distant matters that the member is raising here – not least the discussion in question time, which does seem a bit broad.

The PRESIDENT: I was listening to Ms Terpstra, and she was talking about the Independent Broad-based Anti-corruption Commission, so she can continue.

Sonja TERPSTRA: As I said, I will go to some technical matters, but again these are just examples of why we need to have strong integrity protections, because we know what would happen if those opposite were in government – it would be a shambles.

There are things that I will just touch on in regard to the specifics of this bill. The bill actually removes some important safeguards for procedural fairness. We heard in Ms Shing’s contribution earlier about the technical aspects of procedural fairness and how that applies in regard to IBAC and its inquiries but also the role that it played in regard to the Integrity and Oversight Committee

But specifically, this bill does seek to remove the procedural fairness safeguards designed to protect individual rights, including the obligation that IBAC has to consider on reasonable grounds, and I touched on this earlier –

David Davis: On a point of order, President, I just note the trend with government members today, on the earlier motion but now on this too, to slavishly read material that is in front of them. Now, people are entitled to refer to notes –

The PRESIDENT: Mr Davis, there is no point of order. In this case I have been listening to Ms Terpstra, and I actually glanced towards her a number of times, and she is speaking off the cuff, and she has every right to refer to her notes from time to time.

Sonja TERPSTRA: Thank you, President. I will continue. So again, going to the procedural fairness aspects, IBAC has to balance these things, and as I was saying earlier and Ms Shing touched on in her contribution, IBAC must consider on reasonable grounds – there is a balancing act that they must undertake; it is a very important function – so that conducting the public examination would not cause unreasonable damage to a person’s reputation, safety and wellbeing. That is one very important aspect. The conduct being examined constitutes either serious corrupt conduct, systemic corrupt conduct, serious police personnel misconduct or systemic police personnel misconduct. I might say the reason I am referring to my notes is that I want to make sure that what I am saying is actually accurate and reflects the contents of the bill in terms of what Mr Davis is seeking to prosecute. So again, I want to make sure I am making an accurate point rather than just speaking in ways that are either misleading or inaccurate. It is very important to make sure that we have an accurate debate and accurate content in this debate.

A member interjected.

Sonja TERPSTRA: On absolutely a complex issue. So whilst those opposite want to try and simplify this and have a very simplistic approach to these sorts of things, these matters are absolutely complex. As I touched on earlier, we have seen some dire consequences happen when these matters are not taken seriously or are exploited for political gain, political purposes and political stunts. That is what those opposite are all about.

What we want to make sure is that the bill that we have protects IBAC’s ability to make sure it balances these considerations. What Mr Davis’s bill proposes is to substantially lower the threshold for public examinations so that the conduct need not be serious or systemic and with no consideration of the individual’s reputation or welfare. We have seen what can happen when that in fact happens. As I said, there was a dire circumstance where someone took their own life in regard to them being the subject of an inquiry – I think they were being asked to be a witness and the like and their conduct was in question. These are serious matters. Those opposite do not think it is serious, and again it is endemic in what they are proposing in this bill: trampling upon things that are incredibly important to protect witnesses and to ensure that IBAC as an agency can do its very important work and get the information and evidence that it needs to conduct appropriate and proper inquiries.

Again, as already discussed, the biggest risk to the individual, the damage that can be done, is the potential for inferences to be drawn by the public and the media prior to any determination or findings of guilt. Someone’s reputation is on the line, and procedural fairness goes to the heart of that – that some people who may go before IBAC, because of the nature of the information that they are giving as a witness, may not be able to defend their actions because of the role and the scope of the way in which they are giving information. So again, perhaps those opposite should consult their Liberal colleagues in New South Wales about their views on Mr Davis’s bill, because we have all seen what has been happening in New South Wales of recent times.

A member interjected.

Sonja TERPSTRA: Well, I am sure that he did not, again because this is a political stunt – and it is obvious that it is a political stunt.

By lowering the threshold for public examinations in this way this risk is potentially serious and an individual’s reputation, safety or welfare is indeed jeopardised. I might leave my contribution there and allow for other members to also pick up on some of these very important issues. But again, I oppose this bill, and I encourage other members in this chamber to join with government members in doing the same.

Sitting suspended 1:00 pm until 2:03 pm.

Matthew BACH (North-Eastern Metropolitan) (14:03): Deputy President, may I say – and I am sure I say it on behalf of all members – hearty congratulations on your election once again to this important office.

It is good to have the opportunity to speak on the Independent Broad-based Anti-corruption Commission Amendment (Restoration of Examination Powers) Bill 2202. It should not be a controversial bill. It is a very straightforward bill from Mr Davis. He outlined some of the key reasons why on this side of the chamber we believe this bill is important in his – very succinct, actually – speech when he introduced the bill.

There has been some commentary in the course of the debate about Mr Davis’s speech on the basis that it was voluminous, so I wanted to check, because my recollection was that in his speech introducing this bill Mr Davis was particularly matter-of-fact and indeed quite brief, and he was. He made the most passing of references to some of the really significant corruption issues that have plagued our state over the last few years – the most passing of references – and then he spent the vast majority of his contribution, as is appropriate, discussing the key elements of the bill. And again, they are straightforward.

If this bill passes the house today – and I have every hope that it will – then it will restore certain really important examination powers to the Independent Broad-based Anti-corruption Commission. I confess I am unsure now where we sit as a chamber on the Independent Broad-based Anti-corruption Commission. Through the course of this debate we have not had much commentary on the bill itself. We have been treated to a whole series of historical considerations, and there has been much criticism of the Baillieu and Napthine governments for putting in place IBAC.

I confess before this debate I thought there was broad support across this chamber for the IBAC. You can criticise the Baillieu and Napthine governments if you like on a whole range of fronts, but it was those governments that put in place the Independent Broad-based Anti-corruption Commission; previous governments had not. I believe that the Bracks and Brumby governments did a whole series of good things. They did not, however, put in place an integrity architecture in our state. That was the Baillieu and Napthine governments, and that was a very good thing. I know privately at least many members opposite think that that was a very good thing, so it has been odd to hear some of the commentary, first from Ms Shing and then from Ms Terpstra.

It has also been strange and disappointing that this bill has been used as a vehicle for overt partisan attacks. As I said, in his initial speech Mr Davis referred to some of the appalling corruption scandals that have plagued this government only in the most passing of ways. It is not the case that any one side of politics is perfect. It is not the case that any previous government is perfect. It has been odd therefore to be treated to so much criticism of the Baillieu and Napthine governments and of course the Kennett government as well.

Some previous Labor governments have been marked by a great regard for integrity. They say that John Cain, when he was Premier, would refuse even to accept a coffee. I had the great privilege, in the years before she died, of getting to know Mrs Kirner when she was the Victorian government’s communities ambassador. That was a role that the Baillieu and Napthine governments thought was a very important role, and Mrs Kirner carried out that role with much distinction, working with that government and indeed working directly with me, and getting to know her was a great thing. Again, you can criticise those Labor premiers, those Labor governments, on certain fronts if you want to. However, they were led by people of great integrity – not this government. So it is odd that the government have sought to minimise their own very significant flaws when it comes to integrity by casting aspersions upon previous coalition governments – indeed upon previous coalition governments from last century.

All Mr Davis is seeking to do here is to restore certain powers, including for the commission to hold public hearings. This is being presented as a radical thing by those opposite, as a grave departure from accepted norms. It is not. We are simply seeking to restore certain powers that were stripped away by the Labor government in 2019 and therefore to correct a weakening of IBAC. I think, and we think on the side of the chamber, that given some of the huge challenges that we have seen in our state over recent years, we should not be weakening our infrastructure when it comes to integrity; we should be strengthening our infrastructure when it comes to integrity. I think it demonstrates the weakness of the position of those opposite that all they have sought to do in this debate is to attack Mr Davis personally, which I think is beneath them and should cease, and then, as I have said, to come to historical points about governments – even governments last century. Let us face facts, Mr Davis in his initial speech simply laid out why he believes and why we believe on this side of the house that this bill is important.

These important changes, which are entirely in keeping with past practice, should be restored. It has been really good to have discussions with any number of crossbench members. I would urge members of the crossbench not to be sucked in to this narrative from the government that these changes are somehow novel or dangerous. We are simply seeking to go back to a time before 2019, before Mr Andrews stripped away these particular provisions, to strengthen our infrastructure. It is necessary here in Victoria. Without wishing to dwell upon, as Mr Davis did not dwell upon, any particular examples, which we could if we so wished, of corruption problems in Victoria, it is necessary to have the strongest possible infrastructure. So I would urge all members to support this very straightforward and important bill.

Samantha RATNAM (Northern Metropolitan) (14:10): I rise to speak on one of the two integrity bills reintroduced by the opposition to this Parliament. This one, parenthesised ‘restoration of examination powers’, essentially relates to the ability of IBAC to hold public hearings.

The Greens welcome a renewed focus on matters of integrity in this place, and critical to strengthening Victoria’s integrity regime is removing some of the statutory limitations in the Independent Broad-based Anti-corruption Commission Act 2011 that currently serve to unnecessarily restrict the IBAC’s ability to effectively investigate corruption. This is certainly the case regarding the IBAC’s ability to hold public hearings, which are currently the most restrictive imposed on any anti-corruption body in Australia. So we commend the opposition’s stated intention with this bill: to make it easier for IBAC to hold public hearings and make Victoria’s law on holding public anti-corruption hearings consistent with those in other jurisdictions.

To be clear, I wish to state for the record that the Victorian Greens recognise the critical importance of holding public hearings in anti-corruption investigations where it is in the public interest to do so. The principal legal officer of the West Australian Crime and Corruption Commission Kirsten Nelson explained why public hearings are so critical to the work of integrity commissions far more completely and eloquently than I ever could, so I will quote her here at some length:

Public examinations are essential to restoring public trust and confidence in public institutions because they facilitate accountability and transparency over the conduct of public officers and public authorities, and over the work of the Commission itself. From observing public examinations conducted in a manner that is fair and reasonable, the public may be assured that public officers act in the public interest, and not substantially motivated by private interest. And that public funds are spent in a manner that adds public value, rather than for private gain. Conversely, where public examinations expose conduct that is corrupt or constitutes serious maladministration there is assurance that individuals, systems and processes are called to account, where lacking.

… An examination of an individual in public provides a powerful representation of the corrosive effect of serious misconduct on the wider public and institutions.

I also wish to be clear that the Greens believe that the current threshold for public hearings imposed on IBAC by section 117 of the IBAC act is far too high, and this limits the effectiveness of the IBAC as a corruption-fighting agency. We agree with the opposition that we need to focus on amending this section of the IBAC act. The opposition argues in this bill that the major impediment to IBAC holding public hearings is subsections (c) and (d) of section 117(1). Section 117(1)(c) in the IBAC act imposes a 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. Section 117(1)(d) in the IBAC act imposes a requirement for an IBAC examination not to be open to the public unless the conduct that is the subject of the investigation may constitute serious corrupt conduct, systemic corrupt conduct, serious police personnel misconduct or systemic police personnel misconduct.

However, subsections (c) and (d) are not what IBAC itself or integrity experts say is the problem. The outgoing IBAC Commissioner outlined exactly what the problem is in regard to the operation of section 117 in his recent submission on the national anti-corruption commission, NACC, legislation, where he focused on the requirement in section 117(1)(a) of the act that public hearings can only be held where there are exceptional circumstances. One of the key problems of a requirement for exceptional circumstances to hold a public hearing is that it is unclear practically as to what exceptional circumstances are in terms of an IBAC investigation or allegation, particularly because the IBAC act itself provides no further description or definition. It was left up to the Victorian Court of Appeal to define exactly what the exceptional circumstances requirement means for IBAC to hold public hearings, and they came up with the explanation that exceptional circumstances must be ‘clearly unusual and distinctly out of the ordinary’ compared with the sort of allegations of corrupt conduct ordinarily investigated by IBAC. I repeat: IBAC can only hold hearings when allegations are clearly unusual and distinctly out of the ordinary, which in my opinion does not exactly clarify the situation.

Even when exceptional circumstances are defined, we are still none the wiser as to why the presence of unusual circumstances is necessary to hold public hearings. In this way section 117(1)(a) is unlike the clear intentions of 117(1)(b), which requires that public hearings must be in the public interest, or 117(1)(c), which seeks to protect a person’s reputation, safety or wellbeing from unnecessary public hearings. The conclusion therefore has to be drawn that the purpose of the exceptional circumstances threshold is simply to limit the number of public hearings as a goal in and of itself rather than uphold individual human rights or public interest. This is why the IBAC Commissioner described in his NACC submission that section 117(1)(a), the exceptional circumstances test, had the effect of placing an artificial limit on the IBAC’s ability to conduct examinations in public.

So the Greens today will circulate an amendment to repeal section 117(1)(a), which is the artificial barrier to holding public hearings that serves no clear purpose, and I request that the amendment be circulated now, please.

Amendment circulated pursuant to standing orders.

Samantha RATNAM: I will explain how my amendment works by way of an example. Currently the IBAC Commissioner can be totally convinced the allegations and conduct under investigation are serious or systemic, that it is in the public interest to hold the examination in public and that the public hearings can occur without unreasonably damaging a person’s reputation, safety or wellbeing – that is, such circumstances where there is absolutely no reason for IBAC not to hold a public hearing and much public value in doing so. However, currently the IBAC act effectively also says, in this situation, ‘Bad luck’ – that a commissioner cannot hold public hearings despite these overwhelming reasons for the sole reason that the allegations of corruption are not clearly unusual and distinctly out of the ordinary enough. Maintaining this artificial barrier to holding public hearings in the act is of course completely absurd, given the very real benefits of the anti-corruption commission’s holding public hearings in the right circumstances, which I outlined earlier. No other Australian state has anything like the exceptional circumstances threshold in section 117(1)(a), so repealing this section would bring Victoria into line with the system for holding anti-corruption public hearings adopted in other states, which Mr Davis stated was the overall objective of this bill. So the repeal of section 117(1)(a) would remove the primary impediment to holding public hearings, an impediment unique to Victoria and one that is opposed by IBAC itself.

In short, the opposition have the right idea with this bill today – to strengthen the IBAC’s ability to hold public hearings – but have gone about it the wrong way. Our amendment would better achieve the bill’s intention.

Ryan BATCHELOR (Southern Metropolitan) (14:19): I am very pleased to speak on the topic of corruption and integrity and corruption prevention in public office and in public administration here in Victoria. It is an interesting bill that has come into this chamber recently. There has obviously been a lot of prior discussion and debate about the matters that Mr Davis seeks to canvass in this bill. I have been made aware by my colleagues that this was introduced into the Parliament in very similar terms in the last Parliament, and clearly, for the benefit of new members, it was necessary to reintroduce it. So we at least appreciate that.

What it does afford, however, is the opportunity to have a bit of a conversation and a bit of a discussion about the role that public hearings play in the context of Victoria’s anti-corruption framework and the role of our anti-corruption agency and the reasons and the circumstances under which those hearings are used.

It is important to appreciate the serious and important role that integrity agencies such as IBAC play in upholding principles of integrity and stamping out corruption and to see how these powers, when exercised, are necessary to serve their purpose in the exercise of those functions. We take it seriously. And the forum of anti-corruption and the forum for stamping out corruption we take very seriously, and we believe it is not an arena or a tool to use for political gamesmanship. So in understanding the mechanisms that IBAC has available to it to uncover, unearth and eradicate corruption in the state of Victoria, we are of the view that the mechanisms that are put in place for the exercise of the public examination powers currently in the act, which were introduced by amendments brought into this place in 2019, are the most appropriate exercise of those powers.

In doing so we understand that in a society and a government subject and adherent to the rule of law things such as natural justice and procedural fairness play an exceptionally important role in ensuring confidence in the institutions that seek to wield investigative and examination powers. There is no denying that public investigative hearings, such that the IBAC does undertake from time to time when the appropriate thresholds have been met and which this bill seeks to amend to create a more expansive system of public investigation, can have a serious and significant impact on individuals who are brought before them, with an impact on their rights. There can be and there are costs that can be involved to the privacy, the reputation and the welfare of those individuals involved, which is why the serious and significant powers that we afford to bodies like IBAC come with safeguards and protections, because we must always in this place think about the balance that we must strike between powers and protections, however and whenever they may be exercised in the name of the state of Victoria.

One of the issues that we have and that we know from experience in other jurisdictions and also in the way that the proceedings of the Independent Broad-based Anti-corruption Commission here in Victoria have occurred since its inception more than a decade ago is that public hearings do not guarantee a finding of corruption or misconduct based on the allegations that the investigation is subject to, they do not guarantee public confidence in the process and they do not guarantee the promotion or protection of integrity in our institutions. In considering the scope of the powers to undertake public hearings, we need to think about and understand the dynamics that are at play when public investigations and public hearings are called and the necessary and serious threshold that we in the government believe should be applied to those hearings so that both individuals and institutions are afforded their rights under law, including the rights of natural justice and procedural fairness. And if we lose that balance and we fail to provide that adequate protection throughout the investigative process, we risk the institutions themselves, in this case IBAC, becoming delegitimised and subject to question. And I think for those of us who place a premium on integrity, we need to ensure that the reputation of these institutions and the reputation of these organisations is protected at all costs, and that is what the government is seeking to do.

The government, in the last term of Parliament, introduced some exceptionally significant reforms to the operations of IBAC and a strengthening of its investigative procedures, including the thresholds for serious misconduct in public office, which has allowed it to take a more active and serious role in tackling corruption in the state of Victoria. Indeed, the Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018, which was debated in the Parliament in early 2019, is a very thorough examination of those issues and was given very thoughtful consideration by the government and the then minister based on quite systemic investigation by the Integrity and Oversight Committee as to the operations of IBAC.

We do believe that the thought and consideration that the government has given to this issue over several years has been demonstrated by our commitment to making sure that IBAC has the necessary powers to do its job and has the framework in place that allows it to exercise its powers and functions with utmost confidence whilst doing so in a way that protects individuals and their rights under law and ensures that the welfare and reputation of witnesses is safeguarded, which is an issue that has come before the Parliament and which came before the Parliament’s Integrity and Oversight Committee in their investigation during the last Parliament into witness welfare.

There are good reasons why the parliamentary committee on integrity and oversight needed to examine witness welfare. There have been some really sad incidents, devastating incidents, of the unintended consequences of public IBAC inquiry, which is why we need to tread carefully when considering this issue. It is for those reasons that the act requires IBAC to consider on reasonable grounds whether holding a public hearing would cause unreasonable damage to a person’s reputation, safety or wellbeing.

In considering the bill before us today we need to reflect on that committee’s work and on the strengthening that the government in the previous Parliament did to the IBAC framework and then make an assessment for ourselves as to whether we think that proposed by Mr Davis is going to take us in the right direction. I think, on reflection, in examining the material that is before us, that the moves that are proposed by Mr Davis would lead to an undermining of confidence in the operation of IBAC and would not add to but could in fact diminish the quest for greater integrity in this state.

I do reflect on the comments of the former IBAC Commissioner the Honourable Robert Redlich AM KC when he was submitting to the Integrity and Oversight Committee’s inquiry into the management of witness welfare, and I would like to quote him here. He said the current criteria is:

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

We believe in listening to those experts and in weighing up that balance of factors in how we should approach it.

The other thing that I think is worth reflecting on is that this is an issue which is being considered not just in this jurisdiction. Although we would always, always believe that Victoria is the pre-eminent jurisdiction for the contemplation of all matters of public policy and public administration, there are some other legislators around the country who do turn their minds to such things from time to time, and that is why it is interesting to reflect on the debate that has been occurring recently in Canberra. The Commonwealth Parliament has been considering very similar matters and has come down on the side of reflecting the framework for public hearings and the threshold for public hearings that exists here in Victoria. What I think that demonstrates is that there is a vindication of the Victorian approach at a national level, something that the legislation before us today would be an unfortunate retreat from.

I think the other thing that is important to examine in the proposal from Mr Davis is the impact that his amendments, particularly the bill’s attempt to remove section 117(5A) from the Independent Broad-based Anti-corruption Commission Act 2011, will have in removing necessary and important oversight provisions that enable the public and the Parliament to have confidence that IBAC’s powers are being exercised properly – namely, the proposed removal or amendment of the oversight that the Victorian Inspectorate is able to do of the operations of IBAC’s exercise of its public examination functions. We know, and I have said this before, that confidence in the system is paramount. Confidence in the agency’s ability to exercise its functions in a way that in itself is accountable too is something that we will always be able to know is occurring if there is someone else watching what is going on. By removing these safeguards from the act, it removes the capacity or affects the capacity of the Victorian Inspectorate to investigate and examine how IBAC itself is using the very, very serious powers that it has to call people into public examination and ask them questions about their actions and their integrity without any findings of misconduct that may have occurred. We know that has serious ramifications for those individuals involved; we have read the reports that have demonstrated it.

What this government has done is try to make sure that when those powers are exercised, they are exercised with care and oversight. What this bill will do is water that oversight down, and we are concerned as the government that watering down of the oversight provisions from IBAC can undermine public trust and confidence in the exercise of its powers. The more we undermine public confidence in IBAC’s ability to exercise its powers in the context of the rule of law and affording people procedural fairness, the more it steps ever so slowly, ever so constantly, into the realm where its objectives are not eliminating corruption in this state but being an arena where political games get played, and that is the last thing that we need to see in the state of Victoria. IBAC has been an exceptionally important tool that has been used to weed out corruption and unethical and improper behaviours across public administration in this state. We cannot let the gains that have been made be undermined by actions proposed in this bill which would take a body that has been exercising its powers effectively and put them into a space where they are more likely to be used for political gamesmanship and the scoring of political points.

I think absolutely and fundamentally that robust integrity agencies are fundamental to Victorian democracy, and we as legislators in this place, and as new legislators in this place, have a fundamental obligation to ensure that the powers that those agencies are exercising are exercised in accordance with the law and the rule of law and with procedural fairness, and that is why we do not think the amendments moved by Mr Davis should be supported.

Tom McINTOSH (Eastern Victoria) (14:34): I also rise to oppose the bill proposed by Mr Davis. This government supports Victoria’s integrity agencies and recognises the importance of IBAC being able to use its public examination powers when necessary to undertake its function to promote integrity and expose serious and systemic corruption and misconduct. The current act does not preclude IBAC from holding public hearings. Of course there is an argument being put by the opposition that public hearings educate the public sector and community about corruption and misconduct issues. We do not deny this. We also acknowledge that public hearings raise the profile of investigations.

However, let us be clear about this: what public investigation hearings do not guarantee is procedural fairness. Public hearings do not guarantee a finding of corruption or misconduct based on the 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. Not only that, there is no denying that public investigative hearings can have a significant impact on an individual’s rights, with serious costs for the privacy, reputation and welfare of the individuals involved.

This is why integrity agencies such as IBAC, which have wide investigative powers, have legislated safeguards and protections. These safeguards and protections serve a purpose, a public policy and public integrity purpose. That purpose is so that IBAC can investigate allegations of corruption and misconduct and that the investigation is supporting the promotion of integrity and public confidence in our public institutions. The only way to do this is to adequately balance the potential infringement on the rights and welfare of those who are being investigated and any other individuals who may be involved. If we lose that balance and we fail to provide adequate protection of individuals through the investigative process, we risk IBAC descending into a witch-hunt, a witch-hunt that does not promote integrity, a witch-hunt that does not promote public confidence but instead stokes fear and anxiety, hallmarks of trial by media. Victorians expect better than that, and they deserve better than that.

There is clearly a political message built into the name of this bill, which I believe is important to examine. It is an indication that this bill is nothing more than a political stunt. This bill denies the fact that it was the Baillieu government which established IBAC in 2011 and which first enshrined the obligation that IBAC must consider on reasonable grounds that conducting a public examination would not cause unreasonable damage to a person’s reputation, safety or wellbeing. This title suggests that this consideration goes too far, that the protections that the Liberal government introduced as a safeguard to protect individuals have gone too far. These protections that they introduced, and with good reason, are a good measure to ensure IBAC’s investigative powers are well balanced with the welfare, privacy and wellbeing of the individuals subject to the allegation.

The name of the bill suggests that this bill will restore IBAC’s examination powers. However, that is absolutely not the case. IBAC’s powers to investigate, which are coercive and inquisitorial, are intact. What is being attacked by this bill are the safeguards – the framework for balancing the consideration of the impacts of a public investigation on individuals involved against the public interest for a public hearing. It is no surprise the Integrity and Oversight Committee focused on witness welfare in its report, Performance of the Victorian Integrity Agencies 2020–21, which was tabled in Parliament in October 2022. There is good reason why the IOC examined witness welfare. It was at the start of last year that we witnessed the devastating impact and unintended consequences of a public IBAC inquiry and the damage that can be done.

It is for these reasons that the Independent Broad-based Anti-corruption Commission Act 2011 requires IBAC to consider on reasonable grounds whether holding a public hearing would cause unreasonable damage to a person’s reputation, safety or wellbeing. It is for this reason that I believe the community expectation is that IBAC is required to balance individual rights and welfare while ensuring it can fulfil its function to investigate and expose corrupt conduct and police misconduct.

The former IBAC Commissioner the Honourable Robert Redlich AM KC publicly submitted to the Integrity and Oversight Committee’s inquiry into the 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 …

The importance of these legislative protections cannot be overstated. As a result of the IOC report on witness welfare the new IBAC regulations, which commenced on 4 February, included the prescription of a range of services, including Beyond Blue and Lifeline, for providing crisis support, suicide protection and mental health and wellbeing services to individuals subject to confidentiality notices.

The strength of Victoria’s anti-corruption framework in relation to public investigation hearings, which this bill seeks to undermine, is highlighted by the Commonwealth’s adoption of a similar approach in the establishment of a national anti-corruption commission. I will note that after promising the Australian people an anti-corruption commission the former Liberal Prime Minister Scott Morrison – also known as the former minister for health, the former minister for finance, the former minister for industry, science, energy and resources, the former minister for home affairs and the former Treasurer – presided over 1000 days of inaction. I commend the Albanese government for delivering reform after years of inaction by the Liberal–National coalition government.

Like IBAC, in order for the national anti-corruption commission to conduct a public hearing, the commissioner must be satisfied that exceptional circumstances exist and that it is in the public interest to do so. In undertaking this assessment, the Commonwealth bill encourages the commissioner to consider important protections, including the extent to which the corrupt conduct is serious or systemic. Clause 4(1) of Mr Davis’s bill seeks to repeal the equivalent section of Victoria’s legislation. The Commonwealth bill also encourages the commissioner to consider any unfair prejudice to a person’s reputation, privacy, safety or wellbeing. Again, clause 4(1) of Mr Davis’s bill seeks to repeal the equivalent section of Victoria’s legislation.

So what exactly does this bill do? It seeks to remove procedural fairness safeguards designed to protect individual rights, including the obligation that IBAC consider on reasonable grounds that conducting the public examination would not cause unreasonable damage to a person’s reputation, safety or wellbeing and the conduct being examined constitutes serious corrupt conduct, systemic corrupt conduct, serious police personnel misconduct or systemic police personnel misconduct. In other words, it substantially lowers the threshold for public examinations so that the conduct need not be serious or systemic and with no consideration of the individual’s reputation and/or welfare. The biggest risk to the individual and the damage that can be done is the potential for inferences being drawn by the public and media prior to any determination or findings of guilt. By lowering the threshold for public examinations in this way, there is risk of potentially serious harm and an individual’s reputation, safety or welfare is jeopardised.

This bill seeks to remove section 117(5A) of the IBAC act, which will undermine the Victorian Inspectorate’s safeguarding role by enabling IBAC to create a public expectation of a public examination in advance of the Victorian Inspectorate’s assessment. Currently, IBAC must not make a public announcement of its intention to hold a public examination for the purposes of an investigation unless the IBAC has notified the Victorian Inspectorate. The Victorian Inspectorate is an important independent safeguard that ensures the IBAC is using its significant coercive powers to compel witnesses to provide evidence responsibly. Removing this requirement can potentially undermine the Victorian Inspectorate’s important safeguarding role by enabling IBAC to create a 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 the public examination is unwarranted.

Further, clause 4(2) of Mr Davis’s bill operates to repeal section 117(3a)(a) of the IBAC act, which allows IBAC to hold any part of that examination in private on application by a witness. The effect of these proposed repeals is that the IBAC can only hold parts of public examinations in private if it decides to according to its own-motion power, the risk being that if an application is not made to the IBAC about any potential issues, then the examination will remain open to the public unless the IBAC becomes aware of the issue itself. IBAC is not required to give an advance copy of a report to government if IBAC considers that in all the circumstances it would be inappropriate to do so.

A member: That seems reasonable.

Tom McINTOSH: Exactly. Clause 5 of this bill operates to repeal this section of the IBAC act. IBAC operates independently of government, as it should, as do Victoria’s other integrity agencies. The Ombudsman Act 1973 includes an equivalent provision to what this clause is seeking to repeal from the IBAC act. By misaligning integrity agencies legislation Mr Davis is undermining the important work they do. The government is committed to working with integrity agencies to improve their legislation so that it supports them in performing their important work; however, any such changes need to be carefully thought through and appropriate consultation needs to occur with relevant parties to ensure it 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. It is for these reasons that the government does not support the bill.

I just want to come back to the quote which I mentioned once – but I would like to mention again – of the former IBAC Commissioner the Honourable Robert Redlich AM KC in his public submission to the Integrity and Oversight Committee 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 …

It just brings me back to the point that the strength of Victoria’s anti-corruption framework in relation to public investigation hearings, which this bill seeks to undermine, is highlighted by the Commonwealth’s adoption of this bill. I am absolutely proud of the fact that we are being followed federally from the work we have done here in Victoria.

Another point I want to come to is again to highlight another couple of points of what this bill will do in removing procedural fairness, including the obligation that IBAC consider on reasonable grounds whether conducting the public examination would not cause unreasonable damage to a person’s reputation, safety or wellbeing and the conduct being examined constitutes serious corrupt conduct, systemic corrupt conduct, serious police personnel misconduct or systemic police personnel misconduct. In other words, it substantially lowers the threshold for public examinations. So that conduct need not be serious or systemic and have no consideration of the individual’s reputation and/or welfare.

As already discussed, the biggest risk to the individual and the damage that can be done is the potential for inferences being drawn by the public and the media prior to any determinations or finding of guilt. By lowering the threshold for public examinations in this way, there is risk of potentially serious harm and an individual’s reputation, safety or welfare is jeopardised. 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. Removing this requirement can potentially undermine the Victorian Inspectorate’s important safeguard role by enabling IBAC to create a 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.

I will close by noting that the government is committed to working with integrity agencies to improve their legislation so that it supports them in performing their important work. Any such changes need to be carefully thought through with appropriate consultation with relevant parties. These amendments do not achieve their purpose; they erode the important protections provided to IBAC.

Gaelle BROAD (Northern Victoria) (14:49): I move:

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

Motion agreed to and debate adjourned until later this day.