Wednesday, 8 February 2023

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

Second reading

Debate resumed on motion of David Davis:

That the bill be now read a second time.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (14:50): There is a fair bit of confusion in the chamber today about the intentions of the opposition in relation to these bills, which is not necessarily far removed from the last time we dealt with topics of this nature and indeed this bill. I was just looking for a copy of the bill on the table and it was not there earlier, so I am hoping I can get a copy of that. Having said that, because it is identical to the one that Mr Davis and I spent quite some time reviewing around six months ago –

David Davis interjected.

Jaclyn SYMES: Yes, committee was fun. It is nice reversing roles every now and again, just not permanently.

The bill is something that we have gone through before. But obviously there are a lot of new members in the chamber, so I will take the opportunity to revisit some of the themes that we looked at at that time. At the outset I do want to confirm that the government has strong support for our integrity agencies. We are committed to working with them to improve their legislation and to fund them appropriately to do their important work. We consult with them regularly on issues that are important to them. They obviously have experiences in their day-to-day activities and they share those particularly with me, although they are independent in relation to their budget submissions to the government’s processes. They do not discuss their budget necessarily with me, but they do discuss legislative supports, requirements and how they think things are going. Particularly relevant to this bill are the IBAC and the Victorian Inspectorate (VI) for the purposes of some of the changes that Mr Davis is seeking to introduce.

As I said, Mr Davis did bring a bill that on examination is word for word the same, I am pretty sure.

David Davis: It’s very close.

Jaclyn SYMES: Very close? I could not identify some of the changes.

David Davis: The second reading changes.

Jaclyn SYMES: The second-reading speech has changed. I could not identify anything in the bill that was different, but I would ask Mr Davis when he is summing up to perhaps just bring that to my attention in case I have been unable to identify that.

It is also a bill that went through the Scrutiny of Acts and Regulations Committee process. I would encourage members to revisit the Hansard from the debate on this six months ago, because Mr Gepp, a former member of this place and former member for Northern Victoria, went to some great lengths to explain to the chamber SARC’s consideration of this bill, and I certainly would not be able to perform to the level of Mr Gepp when it came to his enthusiasm for identifying issues that SARC had identified in the bill and indeed asking Mr Davis in relation to the issues whether he could respond to those. I think it was a bit of a tag team between him and me in relation to the committee stage, to which in good grace Mr Davis made attempts to respond in every instance as thoroughly as he could. Having said that, despite those efforts I would not say that I was particularly satisfied with all of Mr Davis’s responses. Therefore I was a bit disappointed to have the confirmation that, apart from perhaps some minor tweaks in the second-reading speech, with some of the issues that were identified by that committee – some pretty major flaws in the bill – he has not taken the opportunity to reflect on those and perhaps see if he can have a bill that would be workable should it pass both chambers of the Parliament.

That committee stage definitely demonstrated beyond doubt that there are significant gaps in Mr Davis’s understanding of how the proposed bill would actually operate in practice. It showed a lack of understanding of the constitutional impact on the independence of the Supreme Court and certainly the impact on procedural fairness matters. As I said, these concerns remain outstanding. It is disappointing, because we did spend a lot of time going through the bill and it could have been –

David Davis: We just had different views.

Jaclyn SYMES: We will get to that. You can have different views. I am usually reluctant to say ‘I’m right, you’re wrong’, because in areas of legislation and areas of justice policy and integrity policy there are shades quite often. But I reckon I am more right than you on most of these issues. There are concerns that were brought to Mr Davis’s attention, and I think that he will be asked to revisit these in his summing up, because I do not intend to go back into committee. I will let you off the hook. I think we have done that once –

David Davis: I am happy to if you would like. I think I enjoyed it, actually.

Jaclyn SYMES: I think you did. We might spare the other members that. I would encourage people to have a look at Hansard, because it was a bit of fun, but it certainly did not convince me that this bill in any way has any merit in relation to being supported as a decent piece of legislation that should come out of this Parliament.

In addition to some of the concerns that I have already highlighted at the outset, we did have further concerns in relation to the charter of rights and whether there were breaches there in relation to the legislation and potentially whether there was opportunity for prejudicing future judicial proceedings in some of the clauses and how they were seeking to change the operation of the IBAC’s practices.

Again, this is titled ‘facilitating timely reporting’, and I guess in principle and at face value that is not something that anyone could reasonably object to. But that does not mean that you railroad through proper process, judicial independence and appropriate protection for all of those engaged in the system. So on that, I would put on record that we do recognise the importance of IBAC being able to publish its investigative reports in a timely manner. However, the publication of reports must be properly balanced with provisions that are appropriately protecting individuals’ rights to procedural fairness and to seek effective remedy through the court. These principles are critical in our state, which places a high value on the rule of law. These are principles that should be upheld and should not be discarded so willingly and disregarded in such a reckless manner. That is reasonably obvious through this bill to anybody who takes the time to understand how it would apply should it become law.

As I said, we did canvass these issues with the bill back in June 2022, and I must remind the chamber that that bill was defeated. It was not adjourned off; it was put to the vote, and this chamber, the members of the Legislative Council of the former Parliament, agreed with the government. The majority agreed with the government that it was a bad bill and deserved to be binned. So, as I said, the fact is that it is identical and not even making an effort to address some of the serious concerns that were identified by not only me as the relevant minister who had carriage of these particular matters through the portfolio of the Attorney-General but also SARC, the body, the parliamentary committee of this Parliament whose role is to scrutinise and provide questions to the authors of bills and to try and make sure that legislation is going to be fit for purpose, operational. There are concerns raised that I do not believe have been adequately addressed.

Mr Davis has previously stated that this bill was not arrived at casually or lightly, and he stated that it was well thought through. But if we look at the opportunity they took to ask him about it, how well was it prosecuted? If we look at some of the responses that Mr Davis presented in the committee, he could not even tell me whether it had gone through shadow cabinet or not. He could not tell me what legal types he had consulted on it, just that there were some legal types. There were no organisations that he could identify that supported his legislation, and indeed he confirmed that he had not even sought the views of the IBAC Commissioner, the very person who takes carriage of these matters. His views were not sought. I guess, Mr Davis, it would be great upon your summing up of this bill if you could take us through any further consultation you have had or perhaps further elaborate on those legal types that you identified were part of your thinking when you were asking for this bill to be drafted.

As was noted in the bill’s previous debate, the government does not consider that these proposed amendments effectively strike the right balance between publication of reports and individuals’ rights. We did identify that it is quite sloppy work, and I think, again, there was the opportunity to bring back something for further consideration. But just lobbing up the exact same bill, I do not know what Mr Davis was expecting. I am not in a position to change my views when nothing on that side has changed. All I am hearing from Mr Davis is, ‘I think I was right and you were wrong.’ You have not even gone to the effort to convince me. You have just lobbed it up again, so I am just going to stand here effectively and repeat the same thing that I said last time, which is that it is quite problematic.

Actually one of my favourite moments in our exchange, Mr Davis, was during my concerns about judicial independence. You said, ‘No, no, no, I don’t want to trample on judicial independence. I wouldn’t do that. We just want to make a point with the legislation.’ I think that was my favourite part of your contribution: ‘No, no, no, we don’t want to tell them what to do. We just want to make a point that what they should do is this. The separation of powers isn’t trampled on, because it’s just a suggestion,’ which was a curious piece of legislation in that respect I thought. Again, Mr Davis, it would be good if you could give some greater clarity in your summing up of some of the further work that you might have done or the people that you have spoken to in relation to your introduction of this identical bill.

As I said, we did have significant concerns around procedural fairness. It raises issues such as increasing reporting time lines as well as creating conflicts with judicial proceedings. I did want to bring to the house’s attention that in Mr Davis’s response to SARC he said:

There is a risk that whilst appropriate rights must be preserved, legal machinery can be used to unreasonably delay the tabling of critical IBAC reports.

While there is always a risk that people may misuse the courts, we would characterise this process as the application of the rule of law, procedural fairness or natural justice. The last time the bill was debated, as I said, Mr Davis relied on legal people, and I would be interested to know if he has had a further discussion in relation to the rule of law and how this bill is potentially not necessarily complying with those types of principles. As I said, we are committed to working with our integrity agencies, and we will continue to have conversations with them about their wishes and desires and what can make their lives easier in doing their job.

I wanted to just go through some of the clauses in the bill. Again I am putting some questions to the chamber but also, I guess, giving Mr Davis plenty of notice of some of the issues that I would like him to come back to us on when he is doing his summing up to avoid committee potentially; we will see. In clause 4, ‘Determination of claim’, we have gone through this and sought our own advice in relation to how this would play out in practice, and the advice that I have is that it is certainly not clear whether the insertion of these provisions will have any practical effect on the speed with which the Supreme Court considers applications to determine privilege, which is coming back to my assertions that the bill is flawed. When you have a title of a bill that includes ‘facilitation of timely reporting’ and the advice I have is that it is very unlikely that there will be a practical effect on the speed with which the Supreme Court does consider applications in determining privilege, I am not sure the intention of the bill would be met. In fact the title of the bill would not be recognised through these clauses.

As I have said in relation to the lack of consultation, it does not appear that Mr Davis has indeed sought the view of the Supreme Court. You are always welcome to write to the Chief Justice and seek her views on matters, and I do not think you have done that. Certainly you have not indicated to the chamber that you have, so I would seek confirmation in relation to that, particularly when you have a bill that is purporting to put pressure on the Supreme Court to heed a particular requirement – which, as you have indicated, is just a suggestion. But I am sure that the court would be keen to give you their view if you sought it.

Section 85 of the Constitution Act 1975 vests the Supreme Court with unlimited jurisdiction. Due to the extent that Parliament wishes to limit, alter or vary this jurisdiction, it is required by section 85(5)(a) to explicitly reference that section. The proposed amendments that have been put forward by Mr Davis do not explicitly reference an intention to alter or vary the Supreme Court’s unlimited jurisdiction, and the Supreme Court may not support an attempt to alter or vary its jurisdiction without this explicit reference. So again, just knowing how this is going to work in practice, it is fairly meaningless because the bill that Mr Davis has proposed does not have any ability to force the Supreme Court to do anything that it may not want to do or may not be able to do. It is again just an aspirational statement made without even having spoken to the people that you are seeking to make do as you wish.

Despite IBAC’s public commentary that matters are being delayed due to court proceedings, recent published decisions such as Woodman appear to show that the courts are expediting these matters, with matters listed for substantive hearings within approximately four weeks of the application being lodged and judgement within approximately four months. So again, it is kind of unclear exactly what Mr Davis has identified that he is trying to fix. As I have articulated, even if he had identified the problem, I am not sure this would fix it anyway. Also in relation to clause 4, we note that the amendment may also add to the pressure that the courts are facing and ask them to make a moral judgement on what could be viewed as important through a political lens as opposed to a public interest lens. So it is difficult to support any of those clauses, particularly without consultation with the Supreme Court, which I do not believe has been undertaken.

Clause 5 is in relation to special reports in the bill that we are considering at the moment, and it intends to substitute some subsections in section 162 in relation to adverse findings effectively. Again I am asking Mr Davis whether he could confirm whether or not he has consulted with IBAC in the development of this proposal, because as we had a bit of discussion about last time, the time frame of three months is – I am not sure how you have come to that. Is that something that IBAC would agree with? Some people might think it is excessive; some people might think it is not. I do not know; it is kind of plucked out of nowhere, I think. For an example of how this can apply in practice, the Police Association Victoria on behalf of a member have been consulted on a three-month time frame in other situations, and they thought that in complicated matters it may take longer than three months for organisations or individuals to respond to such a limit if such limit was imposed. So again, where are you testing this? How is it going to work in practice? And being so restrictive, I feel as though you are not going to get the intention that you are articulating that you are seeking.

Also, I think what we went through and I do not think you responded particularly well to in the committee was whether it is likely that individuals subject to adverse findings will be encouraged to actually seek the maximum time for providing a response. Once you actually put in a three-month time line, somebody who might have been going to respond in a week might go, ‘Oh well, I don’t actually have to respond for three months, so I won’t.’ And then if they get a report back that has adverse findings, does the clock start again or not? I think the way the bill is drafted would imply that the clock would restart every single time you got more information to respond back to the commission and their inquiries. Effectively, that backwards and forwards could, by putting in the three-month provision, actually allow the clock to restart every three months. Again, I do not see how that facilitates timely reporting, because I actually think it facilitates the ability for people to drag out their proceedings.

Harriet Shing interjected.

Jaclyn SYMES: As Ms Shing is interjecting, we have got instances where perhaps it has been demonstrated that that is something that would be encouraging to certain people that are engaged in these processes. Again, I just think it is sloppy and reckless.

What concerns me a little bit about these bills is that it is easy to say, ‘What a great thing – we’ve got a bill that seeks to improve integrity and make things more transparent.’ And at the outset I can see why people would be attracted to vote for something like that. But if you drill down into the detail, if you understand the ramifications of it, the unworkability of it, it is just not legislation that is becoming of this Parliament.

Yes, I accept that people want to be able to put out a press release or say that they support integrity and that the opposition are trying to firm things up, but I would urge caution particularly for those members that will be considering their vote, those in the crossbench. Just saddling up to someone who says they are trying to bring about greater powers and greater accountability to IBAC – you need to do your homework. I would encourage you to read Hansard. I would encourage you to read the SARC report. I do not think this bill will be voted on today, so I am more than happy to actually send that around to people so that you can understand that this bill is just sloppy and unworkable. Let us be frank. I will be honest. We know the amazing election result that delivered 56 seats in the Assembly – one more than the previous Parliament, Ms Shing. My advice to the Assembly will be, ‘Oh my God, we cannot let this bill pass both chambers of the Parliament because it would be embarrassing for a piece of legislation to come out of this place that is unworkable, will cause problems, will be offensive to the Supreme Court and attempts to offend separation of powers principles.’

Mr Davis, if you had taken the time to make it a bit better, I would not have to say such awful things about your sloppy work, but that is the position that you have put me in. I do not like being so critical, but you have just done nothing. You have just lobbed it up again without as much as a new full stop, and it is embarrassing. So I am going to leave it there because I feel as though I do not want to say anything nastier than that. It is really bad. As I said, we have got some time between this sitting and the next sitting, so it would be really great if you could let me know if you want to vote on it next week so that I can go and tell people how bad it is. But if you are just going to abandon it, that would be awesome to know as well, because I think that is what you should do, and I will not have to go and tell people how terrible your workmanship is. So on that note, I think it is obvious the government will be opposing this bill and ‘try again’ would be my advice.

Samantha RATNAM (Northern Metropolitan) (15:13): I am happy to speak on the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022, one of the two integrity bills the opposition have reintroduced from the last Parliament. Regardless of what party you are a part of, or whether we are from the left, right, centre or independent, I think we might all agree that a real focus on strengthening Victoria’s integrity regime is something that needs to happen and something we should be able to work well together to achieve in this Parliament, because the verdict from the Ombudsman and IBAC delivered last year was blunt and it was damning. Victoria is the nation’s laggard when it comes to having an effective anti-corruption and political integrity regime. And given what is happening at the federal level and in the other states that continue to strengthen their already stronger laws, Victoria – the laggard – is at risk of falling even further behind on matters of integrity.

The intention of this bill is to overcome one of the increasingly frequent problems, I believe unique to Victoria, where despite IBAC completing an anti-corruption investigation on a matter of public importance, the final report’s findings and recommendations from these investigations are being withheld from the public by court action because of disputes as to whether named persons within these reports have been given a reasonable opportunity to respond. Without doubt the most qualified and respected voice on anti-corruption and integrity matters, former Victoria Court of Appeal judge Stephen Charles KC, has described the situation as ‘completely unacceptable’. But he has also said that it is something that can easily be fixed by legislative amendment, including by simply defining in the IBAC act what an appropriate time limit is for the making of a response to an adverse comment. This is a remedy proposed in the bill today. The important question then becomes what is a reasonable amount of time for a party to respond in terms of balancing the conflicting issues of the public’s right to know about major issues of public corruption with the rights of those to reputation, a fair hearing and the presumption of innocence for those named. This bill says a reasonable time should generally be three months, and the Greens think this is about right. Importantly, the bill allows some flexibility in this regard in that while it proposes three months as a standard, it also specifically allows a named person to negotiate with IBAC to extend this time period.

We also note that the bill provides that the commissioner may transmit or publish a report after three months but it does not automatically mandate that this occurs. The Greens believe that there is sufficient cause to expect the IBAC Commissioner will exercise sound judgement when making a decision whether to transmit a report after giving full consideration of the need to balance the public interest with any named person’s respective rights.

The bill is not perfect. We would prefer the bill specify that the power to publish regardless of court proceedings in proposed new section 162AA expressly limits this power to civil court proceedings and not criminal proceedings. While we expect an IBAC Commissioner’s sound judgement and caution when exercising these powers would very likely preclude them ever publishing when a matter was the subject of criminal proceedings anyway, we think that it would be better if this was specified in the bill, and we would support amendments to this end. However, on balance this bill is a step in the right direction, so the Greens support this bill. Moreover, we look forward to doing more work to strengthen integrity laws during this Parliament.

Matthew BACH (North-Eastern Metropolitan) (15:16): I will just speak very briefly, because Mr Davis in his second-reading speech, which was, as was his second-reading speech for the previous bill, very much succinct and to the point, hit upon the particular issues that he thought were relevant. I wish to commend the contribution of Dr Ratnam just now to the house as well.

Obviously on this side of the house we do not accept the series of possible concerns that the Attorney-General put forward. As per the previous bill, this is a relatively straightforward matter. As per the previous bill, in actual fact we are not proposing anything radical. We are not undermining any cherished norms of Westminster democracy. We are, however, seeking to ensure that our infrastructure when it comes to integrity can function a little better than it does at the moment. I agree with the points that Dr Ratnam made regarding the particular need, given Victoria’s current status, that we do better and should be seeking to do better. So on that I would end my contribution, I would commend the bill to the house and I would thank members of the crossbench for their consideration of this matter in such good faith.

Gaelle BROAD (Northern Victoria) (15:18): I move:

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

Motion agreed to and debate adjourned until later this day.