Wednesday, 2 August 2023

Bills

Independent Broad-based Anti-corruption Commission Amendment (Ending Political Corruption) Bill 2023

Statement of compatibility

Samantha RATNAM (Northern Metropolitan) tabled a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

The primary objective of the Independent Broad-based Anti-corruption Commission (IBAC) is to identify, investigate and expose corrupt conduct.

Clause 4 of the Bill removes the requirement in section 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (the IBAC Act), for ‘corrupt conduct’ to be “conduct that would constitute a relevant offence”, where a relevant offence is effectively a criminal offence (i.e. an indictable offence or various common law offences).

The effect of clause 4 of the Bill is that IBAC may identify, investigate and expose non-criminal corrupt conduct.

The right to privacy and reputation is provided by section 13 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), which states a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked.

Widening the jurisdiction of IBAC to expose non-criminal conduct as corrupt conduct will likely lead to greater exposure of corrupt conduct, that in turn may adversely impact on the reputations of individuals identified.

However, all similar anti-corruption agencies across other Australian jurisdictions, bar South Australia, may investigate non-criminal corrupt conduct using powers similar to those provided to Victoria’s IBAC. Notably, the jurisdiction of the new National Anti-Corruption Commission opened by the Australian government earlier this year was purposefully legislated to ensure that the Commission could investigate non-criminal corruption.

These other jurisdictions’ anti-corruption agencies reflect contemporary understandings that not all corrupt conduct is necessarily criminal, and so an effective anti-corruption agency must have sufficient powers to investigate and expose this conduct to drive higher standards by public officers and office holders.

Therefore, the effective prohibition on IBAC investigating non-criminal corrupt conduct under the IBAC Act, does not align with public expectations and falls below the minimum integrity standards in other jurisdictions. The Bill seeks to correct this.

Furthermore, there are, in my opinion, sufficient protections in the IBAC Act to guard against arbitrary and unfair attacks on an individual’s reputation. Section 8aa provides for IBAC to prioritise the investigation and exposure of serious or systemic corrupt conduct, and section 117 provides a general presumption against public examinations, that can only occur where they will not cause unreasonable damage to a person’s reputation, safety or wellbeing.

Therefore, in my opinion the proposed powers afforded under clause 4 impose reasonable limitations on Charter rights with respect to privacy, and there are no less restrictive means of achieving a sufficiently empowered and effective anti-corruption commission in Victoria.

Second reading

Samantha RATNAM (Northern Metropolitan) (09:58): I move:

That the bill be now read a second time.

For too long Victorians have been asked to accept poorer standards of behaviour from the people elected to serve them than those in other states.

This corruption, misconduct and general dodginess by public office holders costs Victoria, both financially as taxpayers and indirectly in terms of poor public policy outcomes.

Indeed, the true cost of corruption – its insidiousness – is not just the corrupt act itself but the poor policy that invariably results from it.

Whether it is houses getting built where they shouldn’t and not getting built where they should.

Whether it’s marginal electorates being allocated infrastructure and services they do not need while the ones that sorely do miss out.

Whether it is the projects that are mismanaged because those who received contracts can’t deliver them or boards of management that don’t properly manage risks because members are not appointed on merit.

It does not matter whether the corruption involved is so-called ‘soft’ corruption or hard corruption, whether the corruption is coloured black and white or grey or whether it involved the committing of a criminal offence, such as a direct bribe, or something else.

The policy costs of all forms of corruption are the same. It negatively impacts on the lives and livelihoods of Victorians, and it diminishes the trust in our leaders and institutions equally, whether it technically involves a criminal offence or not.

But Victoria is almost unique in Australia in that it limits its anti-corruption agency, IBAC, to only investigate and expose one form of corruption, that which involves corrupt conduct that is a criminal offence.

Across the rest of Australia, anti-corruption agencies reflect the contemporary understanding that not all corrupt conduct is necessarily criminal, and so an effective anti-corruption agency must have sufficient powers to investigate and expose non-criminal corruption if it is to drive higher standards by public officers and office holders.

The bill itself is straightforward.

It seeks to expand the jurisdiction of IBAC by abolishing the requirement that corrupt conduct must involve conduct that would constitute a relevant offence, where ‘relevant offence’ is defined as an indictable criminal offence as well as certain common-law offences.

This would mean IBAC can identify, investigate and expose corrupt conduct of public officers that does not constitute a criminal offence – things such as serious breaches of codes of conduct of MPs and ministers, egregious pork-barrelling and the awarding of non-competitive tenders and appointments to public positions.

The transitional arrangements in the bill provide that this broadened jurisdiction can be applied retrospectively to conduct that occurred before commencement, as well as allowing IBAC to re-examine matters that it has previously dismissed or referred to another agency.

The bill will align the jurisdiction of IBAC with that of most other anti-corruption agencies across the nation, including the new National Anti-Corruption Commission that opened one month ago, that very deliberately broadened its jurisdiction to capture non-criminal conduct as a key feature.

To conclude, there have been a number of integrity bills that have been introduced into this place in this term, reflecting the inadequacy of the current Victorian integrity regime and the paucity of government action on the issue.

Without wishing to denigrate those bills it is no exaggeration to say that the small legislative amendment proposed in today’s bill is by far and away the most critical single reform to combat corruption in Victoria.

This bill is what giving IBAC the powers it needs looks like.

This is certainly the opinion of the esteemed former Court of Appeal judge and Commissioner of IBAC the Honourable Robert Redlich AO KC.

Former Commissioner Redlich said just two days ago that the reform proposed in this bill is the ‘most important’ anti-corruption reform needed in Victoria.

Commissioner Redlich pointed to the recent report on Operation Daintree, which made countless serious findings of misconduct and a lack of integrity in government decisions – but because these findings could not be called corrupt conduct under the IBAC act, they were able to be spun, misrepresented and downplayed cynically by the Premier, using excuses that everything was okay because no crime was committed.

The Premier went further to say that ordinary Victorians weren’t concerned about this lack of integrity because he gets things done.

So when corruption gets easily ignored and brushed aside, when politicians effectively say, ‘Who cares if I’m corrupt, look at my big infrastructure,’ we have a serious problem.

But as former Commissioner Redlich, who is probably the least partisan person in Victoria, also said, while Daintree is a good example of why reform is needed, this isn’t about Premier Daniel Andrews or any one government or individual.

Soft corruption is rife across the country and we could point to any number of politicians, political parties and jurisdictions over the last 40 years illustrating this point.

But Victoria is, with the exception of South Australia, unique in that it has integrity laws that do not empower the anti-corruption agency to properly investigate and expose all forms of political corruption.

Victoria must not have lower standards than the rest of the country when it comes to political integrity.

And this is why I commend this important bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:04): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.