Wednesday, 16 August 2023

Bills

Independent Broad-based Anti-corruption Commission Amendment (Public Recommendations) Bill 2023

Statement of compatibility

David DAVIS (Southern Metropolitan) (09:58): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

One of the primary objectives of the Independent Broad-based Anti-corruption Commission (IBAC) is to educate the public sector and the community on the detrimental effects of corrupt conduct and the ways in which corrupt conduct can be prevented.

IBAC is currently constrained in its educative role by section 159(2) of its Act which states: “A recommendation … which is not contained in a report must be made in private”.

Formal recommendations can be disclosed in either IBAC’s Annual Report, or in special reports such as those prepared after major investigations.

However, the majority of IBAC’s work involves investigations that do not warrant a special report and that do not comply with the annual reporting requirements specified in the IBAC Act.

This means that many institutional recommendations made by IBAC are known only by IBAC and the institution in question.

The bill would give IBAC the discretion to better realise its objectives by publishing recommendations currently required to be made in private, provided it publishes a statement of reasons why it considers publication is in the public interest.

The bill states: “if the IBAC considers it is in the public interest to do so, the IBAC may publish on its website in whole or part a recommendation … which is not contained in a report, insofar as the recommendation relates to matters of an institutional nature and does not contain a comment or an opinion which is adverse to any person”.

Given IBAC may only publish recommendations of and institutional nature and will be required not to publish a comment or an opinion which is adverse to any person, in my opinion the proposed powers afforded under clause 3 do not impose limitations on Charter rights with respect to privacy.

David Davis MP

Shadow Special Minister of State

Second reading

David DAVIS (Southern Metropolitan) (09:58): I move:

That the bill be now read a second time.

One of the major objectives of the Independent Broad-based Anti-corruption Commission Act 2011 is that the work of IBAC be educative. As objective (c) of the IBAC act states, one of the objectives of IBAC is to:

(c) facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community and the ways in which corrupt conduct and police personnel misconduct can be prevented …

As prescribed by its act, IBAC is to report on, and make recommendations as a result of, the performance of its duties and functions. In addition to its high-profile public hearings, IBAC also examines and makes recommendations in relation to systems and practices in the public sector, public sector legislation and the public sector.

IBAC is currently constrained in its educative role by section 159(2) of its act, which states:

A recommendation … which is not contained in a report must be made in private.

Formal recommendations can be disclosed in either IBAC’s annual report or in special reports such as those prepared after major investigations.

However, the majority of IBAC’s work involves investigations that do not warrant a special report and that do not comply with the annual reporting requirements specified in the IBAC act.

This means that many institutional recommendations made by IBAC are only known to IBAC and the institution in question.

Esteemed former Court of Appeal judge and former IBAC Commissioner the Honourable Robert Redlich AM KC publicly reiterated his views in relation to section 169(2) of the IBAC act as recently as 31 July 2023 at a hearing of the Victorian Parliament’s Integrity and Oversight Committee (IOC).

His view, as presented to the IOC on 31 July, is:

… there is currently a deficiency in the IBAC Act … in that the only recommendations of IBAC which can be published are those which are made in a special report which is tabled in Parliament. IBAC does not table more than two or three reports a year, but we write countless outcome letters to councils and departments at the end of an investigation, in which we identify failings and we set out recommendations. It would be really important that the legislation is amended to reflect the need to be able to publish those recommendations. I do not suggest, if we are talking about recommendations concerning individuals, that recommendations should be published. I am talking about recommendations that identify institutional failings. It makes I think good sense that the community should be alive to recommendations that address institutional failings and are aware of them, and that encourages in turn public discussion about those sorts of things.

This bill is simple and straightforward and has as its sole objective of inserting after section 159(2) of the IBAC act the following:

(2A) Despite subsection (2), if the IBAC considers it is in the public interest to do so, the IBAC may publish on its website in whole or part a recommendation under subsection (1) which is not contained in a report, insofar as the recommendation relates to matters of an institutional nature and does not contain a comment or an opinion which is adverse to any person.

(2B) If the IBAC publishes a recommendation in whole or part under subsection (2A), the IBAC must also publish on its website a statement of the reasons why it considers publication is in the public interest.

This bill would give IBAC the discretion to better realise its objectives by publishing recommendations currently required to be made in private, provided such recommendations are of an institutional nature and do not contain a comment or an opinion which is adverse to any person and that it publishes a statement of reasons why it considers such publication is in the public interest.

In doing so, the bill would address one significant deficiency in the current IBAC act identified by Mr Redlich. It would permit IBAC to make public more of the results of its important work, namely its recommendations, where it judges doing so to be in the public interest and in the furtherance of its objectives, in particular its responsibility to educate the public sector and the community on the detrimental effects of corrupt conduct and the ways in which corrupt conduct can be prevented.

This bill will improve the IBAC act and the operation of IBAC. I commend the bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:03): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.