Wednesday, 8 February 2023

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.

Jacinta ERMACORA (Western Victoria) (15:19): I am pleased to have this opportunity to speak against this bill. This government supports 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. I intend to highlight the potential impact of public versus private hearings on the integrity of an outcome. A key strength of our integrity bodies is that they are independent of any political play. In fact you could argue that the whole purpose of Victoria’s integrity bodies is to retain their independence. It is so important that we strike the right balance between providing public access to inquiries and not inadvertently distorting the outcome or corrupting the process. We also need to avoid using accusation as a tool to discredit and bring into disrepute individuals or organisations unjustifiably.

It is also important that we avoid politicisation of an independent non-political body. I would like to talk about the importance of creating the right environment for witnesses to provide frank and fearless reporting of their experiences, and this goes directly to the issue of public versus private evidence. Some here may know that I worked as a counsellor advocate at the South Western Centre Against Sexual Assault in Warrnambool. South Western CASA supports survivors of sexual assault across the south-west region in Victoria, including outreach to Camperdown, Hamilton and Portland. It is based in Warrnambool. South Western CASA provides therapeutic and advocacy support to survivors of sexual assault from as young as six years of age through to elderly people.

Providing a safe environment for survivors to tell their story is one of the primary roles of CASA. This is not only therapeutically beneficial but also important when the therapist is the person of first complaint in a criminal court process. That is why survivors of sexual assault have the option in court to provide their witness testimony via video link, so as not to be retraumatised by the process seeking to provide justice in the first place. That is the accidental thing that can happen if there is open evidence.

Evidence has shown that women often experience the public court process as intimidating. This is why such a low proportion of cases actually end up in the justice system. This is why the very public nature of an inquiry can have a very fundamental impact on those involved and, importantly, the outcome of an independent investigation. I have seen cases where parents have withdrawn their children as witnesses because of the damage and the acrimony that they might experience as a part of a public judicial process.

I have seen women who are survivors of violence – and men – do exactly the same for the same reason. It is crucial that an independent body such as IBAC is not politicised by inappropriate procedures. It is so important to get procedures right, because they can so easily lead to abuse not only of witnesses but of the very independence of the body conducting the investigation.

I am sure none of us would like to turn IBAC into a tool of any opposition for political gain, and this government’s record is very strong in this space. This government continues to give IBAC broad powers to conduct its investigations and the resources it needs to support its work. It is very important that all of the integrity bodies, including a court system responding to sexual assault, are seen as above any game playing and with a focus on the truth but also respect for those people who have experienced the story that they are wanting to tell, whether it is their experience of surviving sexual assault or whether it is their experience of corruption and they are telling a story. That is why it is so important that we do not allow the game playing that could eventuate if we open up to the public all of the IBAC processes.

The state budget 2022–23 invested a further $32.1 million over four years in additional funding to IBAC on top of its annual base funding, with record funding of $61.9 million in 2022–23. By the end of the forward estimates, IBAC’s funding will be double what it was when we came to government in 2014. On any measure this is an improvement on what we inherited. Funding for IBAC in proportion to the public sector workforces they hold to account is higher in Victoria than other states. So if we want to take a national comparison, Victoria is comparatively stronger in this space.

In conclusion, I strongly disagree with the opening up of the IBAC to public hearings without due consideration by the body itself of making the decision that it is the right thing to do. It is really important that on occasion, when the independent party believes that it is the right thing to do, it be opened up to demonstrate an example. But also it is important to allow witnesses to give their evidence without intimidation and without game playing. Therefore I do not support it.

Sheena WATT (Northern Metropolitan) (15:29): Acting President, this being my first occasion with you in the Acting President’s chair, can I take a moment to acknowledge and congratulate you on that appointment. I think all acting presidents should wear as much sparkle as you do.

The ACTING PRESIDENT (Bev McArthur): I aim to please.

Sheena WATT: Going now to the point before us and the private members bill moved by Mr Davis, I rise today to speak in opposition and would like to caution members regarding what they have heard today from the opposition and from other members in the chamber.

It might seem to some politically expedient to support a bill that sounds as though it will support greater integrity and increased transparency. I caution that this bill is reckless in its approach to so-called improvements. This is a flawed bill that does not give due consideration to the welfare of witnesses, and I will speak to that in my remarks as we progress along. The government is already working on appropriate reforms in close consultation with IBAC and will consult widely, which is clear from the obvious holes in the proposed amendments and misalignments that this bill creates. I would like to point out to the house that the current act does not preclude IBAC from holding public hearings, and I think that is a really important point worth emphasising: the current Independent Broad-based Anti-corruption Commission Act 2011 does not preclude IBAC from holding public hearings. Public hearings of course have their place, and when the hearing is in the public interest, it is entirely appropriate that the hearing take place in public.

The amendments proposed today in this bill by Mr Davis bring to the house a series of considerable issues when it comes to the welfare or privacy of witnesses. This, in my view, is a really shameless political stunt designed to generate media attention and encourage a trial-by-media approach to what really are very important matters that are considered by IBAC. Of course there are, as I said, some issues regarding the welfare of our witnesses, and clause 4(1) of this bill, which proposes to repeal section 117(1)(c) and (d), would substantially lower the threshold for public examinations to be held. It removes considerations of whether public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing.

Mr Davis might have considered the Integrity and Oversight Committee’s recent report on witness welfare before reintroducing the same bill. The Commonwealth National Anti-Corruption Commission Act 2022 in fact adopts the same approach as the current Victorian legislation, and can I take a moment to say to our federal colleagues, it really is about time that you had a very substantial piece of legislation there to enforce anti-corruption in our federal Parliament and other associated bodies, and to pass on my thanks to the federal Attorney-General for leading what I think has been a very substantial and long-needed bill before the parliament there up in Canberra. I think here in this state we will look with great interest and enthusiasm to what that will bring to the federal debate regarding corruption.

Of course there are other bits. When I bring us back in fact to the bill before us there is clause 4(2) of the bill which does seek to remove sections 117(3A)(a), 117(3B) and 117(4) of the IBAC act that provide IBAC the discretion to hold any part of an examination in private upon application by a witness. The effect of the removal of these protections is to narrow the protections afforded to witnesses. This approach, while convenient for the opposition, only serves to jeopardise witness welfare and safety. In fact I recall in the last Parliament we spoke on a number of bills that came from members of the crossbench, if I remember correctly, to really enhance protections for witnesses. Those particular amendments which came from former members of this place are on the top of my mind as we sit and consider this bill before us today. The removal of these sections actually reduces IBAC’s capacity to receive information about potential issues by removing the ability for a witness to make an application to have a hearing heard privately. It relies entirely on IBAC, under this bill as it is presented before us, becoming aware of potential issues by other means. This clause just keeps going.

Further, clause 4(2) of the bill seeks to remove section 117(5A) of the IBAC act. In its current form the act provides that the IBAC must not make any public announcement of its intention to hold a public examination for the purposes of an investigation unless it has notified the Victorian Inspectorate. This is an important safeguard that ensures the IBAC is using its significant coercive powers to compel witnesses to provide evidence responsibly. Removal of this requirement is a highly reckless measure and would undermine the important oversight role of the Victorian Inspectorate.

There are other concerns that I would like to raise in my contribution here this afternoon, including clause 5 of the bill. To my mind, clause 5 of the bill seeks to remove sections 162A of the IBAC act – not just to my mind, but actually on paper there as it is presented to us – which provides that the IBAC must give an advance copy of a report to government before it is tabled in Parliament. However, I will point out to the house that this is just another example of lazy politicking by the mover of this bill, Mr Davis, as section 162A of the IBAC act already provides a provision for the IBAC to not provide an advance copy at its discretion if it determines that it would be inappropriate to do so.

For the benefit of those here listening deeply to my contribution can I tell you that I am in fact referring to section 162A(3), which reads that:

The IBAC is not required to give an advance copy of the report under subsection (1) if the IBAC considers that in all the circumstances it would be inappropriate to do so.

That is section 162A(3) as it now stands. When I speak about cautioning members about supporting this bill without due consideration for its actual impacts, this is a perfect example. This clause of the bill is entirely unjustified as the provision it calls for already exists. In fact if Mr Davis had done the required work in properly consulting on this bill he would have known that the Ombudsman Act 1973 includes an equivalent provision that this bill is seeking to repeal from the IBAC act. The effect of this bill would thereby be to create a misalignment of the two integrity agencies of our state and their respective legislation, which would undermine the important work that they do. These amendments do not achieve their purpose. They would erode the important protections provided to those under investigation by IBAC and undermine key safeguards.

I just want to go back and repeat some facts that are important and need to be heard. That is really the point around public examinations and the current state of the act. I could probably say it three or four more times, but the truth is that the act does not preclude IBAC from holding public hearings. This is quite an extraordinary proposal before us in the bill as it currently stands. There are wide investigative powers and a series of safeguards and protections that exist in IBAC legislation. They serve a really important purpose in our state. Not only from an integrity perspective but also from a public policy perspective it really is important that we have legislation that firmly enables IBAC to conduct investigations of allegations of corruption and misconduct and that the investigation is supporting the promotion of integrity and public confidence in our institutions.

The only way to do this is to adequately balance the potential infringements of rights and welfare of those that are being investigated and other individuals who may be involved. If we do indeed 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, that does not promote public confidence, but stokes fear and anxiety, the hallmarks of a trial by media.

Victorians expect better than that, and they deserve better than that. We should be standing firmly and strongly in support of IBAC when our federal friends in Canberra look to IBAC in the drafting of their federal bill. I mean, there is a lot of the IBAC act that we should be proud of in this state – an act that has been operating for quite some time.

I thank all those people that do what they do in being IBAC investigators and such. I cannot imagine what sort of role that would be, but rest assured that today, as we sit here debating the powers of IBAC and their work of course with witnesses, some members of this chamber are here to make sure that the support of witnesses is thought about, considered and protected very much by keeping the act in its current form.

There are probably some folks at IBAC – I do not know who in fact works there; probably that is a good thing – whose job it is to support witnesses and think about witness welfare. I can only imagine that that is a tough gig and would be made only that much tougher if there were not an option for witnesses to be able to request a private hearing.

Can I thank you for the opportunity to speak today to Mr Davis’s bill. I know that there will be much more said on IBAC, it is likely, in this parliamentary year and the 60th Parliament, but I am indeed happy to begin this year with a contribution on the importance of IBAC and our integrity agencies and to start by recognising their important work. I thank the people that do what they do in upholding integrity in our public agencies and for those of us in public life. So I thank them. And of course I am thinking about all those folks that might find themselves in front of IBAC and supporting those that do so. I reckon with not much more to go I will leave my remarks there, but thank you for your generosity today.

The ACTING PRESIDENT (Bev McArthur): With indulgence, now that the President is back I will suggest that more sparkle is required, based on your recommendation.

Gaelle BROAD (Northern Victoria) (15:44): I move:

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

Motion agreed to and debate adjourned until later this day.