Wednesday, 16 August 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.

John BERGER (Southern Metropolitan) (10:15): Today I rise to speak on the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022. This bill is being introduced by my colleague opposite, Mr Davis, and from what I understand Mr Davis introduced a bill with the same provisions this time last year. In fact on 7 June 2022 Mr Davis introduced a bill where the first reading passed. A day later the statement of compatibility was tabled and the second reading moved. Then on 22 June debate on the bill resumed and the second reading passed. On that day, 22 June, the bill went into the committee of the whole, which was completed without amendment, and just a short while later – I do not know how many hours or perhaps minutes or maybe even seconds – the third reading was moved. The bells were rung, the doors were locked and the third reading was defeated.

I was not a member of the Parliament at the time. I was still representing transport workers and contributing to the broader union movement at that particular time. But I was around for something else. It was only 181 days later when something remarkable happened. On my first day of school – the first day of class, as some would call it – when I was job fresh and was ready to go and my family was here, Mr Davis introduced the bill again, this time to the Parliament that had just overwhelmingly rejected the party and voted for a bright, bold and optimistic vision presented by the Andrews Labor government – a government that will fight for the SEC and deliver; a government that cares about workers, their safety, their dignity, their rights and their job security; a government that builds things and makes things here; and a government that invests in the things that matter, whether it be education, transport, jobs, infrastructure or much more.

President, it might shock you to hear this again, but from my understanding, as was highlighted at the time in the previous debate, in public and more, there are serious holes in the drafting of this bill and its predecessor. Anti-corruption watchdogs are the backbone of any democratically elected government. We have had to bear witness to the damage that the absence of an anti-corruption watchdog did at the Commonwealth level throughout the Morrison government, so this side of the chamber takes anti-corruption bodies seriously and we properly support them. But we cannot in good conscience, and I cannot in good conscience, support a bill that was not well thought out.

As I often say and detail during second-reading debates on significant work that we have put into drafting our legislation, whether it be large, nation-building, comprehensive reform, building things that matter or creating the renewable economy of the future, or if it is the regular statute law amendment bill to ensure the good governance of the law, we take great care in drafting legislation. These proposed amendments have not gone into this level of detail.

Clause 6 of the bill, inserting proposed section 162AA, seeks to allow IBAC to publish reports that contain material that is being challenged in court. Now, I am not a lawyer. I am from the shop floor. I work for a living, Mr Davis, but as a unionist, a union official, a delegate and a representative of workers, I got to learn a little bit about the law. One could say I got to learn about the law, and I reckon this smells like a lack of procedural fairness for subjects.

Last night I had the unfortunate opportunity to visit the Victorian Liberal Party’s website. I had the chance to take a look at the Liberal Party’s platform, its fundamental values, and let me read some of them to you:

11: We believe in parliamentary democracy, democratic participation, the Constitution, the rule of law and honest, accountable government that respects the interests of all people.

12: We believe that democratic, broad-based political parties that represent the interests of a wide range of people are critical to effective parliamentary democracy and stable, consistent government.

13: We believe in the distribution of government power and decisions being made closest to those they serve.

14: We believe in equality before the law, and in providing equal opportunities for all people to live in an accepting, tolerant and diverse society.

Yet I reckon none of these values align with this bill and the lack of procedural fairness it would award the subjects.

Let me repeat what clause 6 of the bill, proposed section 162AA, seeks to do. It seeks to allow IBAC to publish reports that contain material that is being challenged in court. This is remarkable as we know that an IBAC report can have serious ramifications for individuals identified in these reports. It can be life-changing stuff, and this mob opposite is not taking it seriously. For the public to have confidence in IBAC, in IBAC’s findings and in the whole process, there must be equality before the law as section 14 of the Liberal Party’s values states. Individuals subject to investigation must be given an appropriate opportunity to respond to any allegations levelled at them. This is democracy. That is the rule of law as mentioned in section 11 of the party platform of those opposite, which they claim to support.

Natural justice and the associated processes in the Independent Broad-based Anti-corruption Commission Act 2011 provide important protections for individuals that are subject to adverse comment in the public report. The IBAC act balances the role that the IBAC has in undertaking investigations and exposing corruption and misconduct with the rights of the individual – those rights of the accused, the rights of individuals – to be able to review and provide comment on adverse findings – adverse findings that IBAC may consider applying before the material is made public. This ensures that IBAC processes are fair and that findings in IBAC reports are made with all available evidence. The opposition’s proposed provisions under section 162AA genuinely may cause all sorts of drama and unintended consequences, and I think it is reckless and dangerous of those opposite that 162AA may undermine the ability of subjects to an investigation to challenge the actions of IBAC. It potentially removes the ability of the Supreme Court to determine whether they have been provided natural justice or procedural fairness.

Can someone tell me how this adheres to the Victorian Liberal Party’s values? The IBAC act balances the role that IBAC has in undertaking investigations and exposing corruption and misconduct with the rights of the individual – the rights of the accused, the rights of individuals – to be able to review or provide comment on adverse findings – adverse findings that IBAC may consider applying before the material is made public. This ensures IBAC processes are fair and that findings in IBAC reports are made with all the available evidence. The opposition’s proposed provisions under section 162AA genuinely may cause all sorts of drama and unintended consequences.

The existing provisions and protections laid out in section 162(5) of the act are vitally important due to the extraordinary powers provided by IBAC. Mr Davis has set out in 162AA:

Special report may be transmitted regardless of court proceedings

The IBAC may cause a report to be transmitted to each House of the Parliament under section 162 despite any proceedings that are pending in a court in relation to –

(a) the subject matter of the report; or

(b) any other matter or thing that may be relevant to the report.

Let us consider a scenario where the proposed provision could lead to a case where IBAC publishes a report and the Supreme Court finds later that the subject that had adverse findings made against them has not been provided the appropriate opportunity to respond. This is a mouthful, but my staff say to me this is a legitimate exercise that might occur in law school. In this scenario it is not clear how the Supreme Court may grant an effective remedy. And why is that? Because it could be too late to provide that person, or that body or organisation or entity, the appropriate time to respond to the adverse material.

Let us move on to 162(5) and why it is a contradiction. The bill’s provisions appear to contradict section 162(5) of the IBAC act. Why? Because it prevents IBAC from including in its report any information that could or would prejudice a criminal investigation, criminal proceedings or other legal proceedings. If the IBAC knows about criminal investigations, criminal proceedings or other legal proceedings in relation to a matter or person included in the report under this section, the IBAC currently must not include in that report any information that could prejudice the investigation. That goes for any criminal investigation, criminal proceedings or any other legal proceedings. If you read these together, section 162(5) with section 162AA, they create uncertainty, ambiguity and confusion as to how the IBAC could proceed in an investigation in circumstances where legal proceedings are pending. If IBAC were to proceed to table a report in Parliament, that could potentially then prejudice legal proceedings. It could undermine the integrity of the court processes and the rights of individuals to seek an effective remedy in court. There is also a risk that contempt of court proceedings could apply if IBAC tables a report to Parliament that could prejudice a legal proceeding.

I also want to address the timely reporting and applications for privilege in this piece of legislation. The bill proposes a three-month time line for individuals to respond to adverse findings in an IBAC report, proposed in clause 5, which substitutes section 162(2). Rather than resulting in something that could result in more timely reporting, there is a risk that the time lines could result in longer delays. This three-month time line is longer than IBAC currently provides for responses to adverse findings. The proposed time frame could actually work dangerously. The time lines could actually increase some public reporting time frames. Given that in complex cases longer periods may be needed, the bill does something else poorly: it does not set out how to resolve disagreements on the need for longer time frames. It seeks to have applications for determinations of privilege dealt with more effectively, quickly and expeditiously, but the drafting of the provisions in those opposite’s bill does not achieve its purpose or its aim. In fact these provisions are likely to have no practical effect on the determination of privilege.

At the beginning of this speech I talked about the importance of anti-corruption integrity agencies. Our government continues and will continue to give IBAC broad powers to conduct and hold properly conducted hearings and support the resources it needs to do its work. Our government, particularly in the 2022–23 state budget, invested a further $32.1 million over four years, including additional funding to IBAC on top of its annual base funding – 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.

Funding for IBAC in proportion to the public sector workforce they hold to account is higher in Victoria than in other states. The budget boost to the IBAC provided funding equivalent to $217.30 per Victorian public servant in 2022–23 compared to $78.40 per public servant for the New South Wales ICAC whist undertaking a similar number of investigations. We will continue to work with IBAC and other integrity agencies, stakeholders and the wider community and consider their suggestions to create the best system possible, because we want to make sure we have what we need to do the important work.

To wrap up my remarks, we are committed to working with the integrity agencies to improve their legislation and the resources to support them.

Tom McINTOSH (Eastern Victoria) (10:27): I rise to oppose the private members bill moved by Mr Davis, and I follow on from the contribution of Mr Berger. I did actually pick up that he had the misfortune of reading the Liberals website last night. My ears actually pricked up more at the fact that they had a website. I was talking in my contribution yesterday about how they do not generally want to do anything that did not occur in the 1950s on that side, so having a website must have really blown their socks off. But congratulations to them and commiserations to you, Mr Berger.

Last year Mr Davis introduced a bill which contained the same provisions and that the Scrutiny of Acts and Regulations Committee, SARC, raised serious and significant concerns with. Through the committee stage it was also evident that there were significant gaps in Mr Davis’s understanding of how this proposed bill would work, the constitutional impact on the independence of the Supreme Court and the impact on procedural fairness. These are concerns that have not been addressed. These are serious concerns, as they may breach charter rights and natural justice and potentially prejudice future judicial proceedings.

Timely reporting undoubtedly helps to improve transparency, provide public confidence and ensure swift action can be taken on its findings. The government recognises the importance of IBAC being able to publish its investigatory resorts in a timely manner. However, the publication of reports must be properly balanced with provisions that appropriately protect individuals’ rights to procedural fairness and to seek effective remedy from the court. These principles are critical in our state, which places a high value on the rule of law. These are the principles that those opposite and Mr Davis are seemingly happy to disregard.

We canvassed the relevant issues with that bill back in June 2022, when it was voted against. What this bill proposes is identical. Mr Davis has previously stated in this place that this was not a bill that had been arrived at casually or lightly. Mr Davis stated that this bill was well thought through. In light of these previous statements, it is simply breathtaking that, with all the due consideration Mr Davis stated was given to this bill, the opposition is serving up the same offering, albeit with some amendments, which I will speak to shortly.

As was noted in this bill’s previous debate, the government does not consider that the opposition’s proposed amendments to the Independent Broad-based Anti-corruption Commission Act 2011 effectively strike the balance between the publication of reports and individual rights. It is clear that Mr Davis has again been very lazy and very sloppy with the drafting of the bill, and he has no idea of the impact or the effect of what he is proposing to the house. Not only does this bill create significant concerns for procedural fairness, it raises issues such as increasing reporting time lines as well as creating conflicts with judicial proceedings. I note that in his response to SARC previously 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 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 this bill was debated Mr Davis noted that he relied on ‘legal people’ for his advice and guidance but did not clarify who had advised him or how thorough this advice was. It is not clear what he means by ‘legal people’. Perhaps given the gaps in the bill, he simply consulted Google.

As I alluded to before, I just want to raise some amendments that have been proposed to the bill by those that have moved the bill. Just let me get these; they have just come to my attention. Clause 5, ‘Special reports’, just to give you the context I will give you subclause (1), which substitutes 162(2), and there are some other amendments further down. So:

(1) For section 162(2) of the Principal Act substitute –

…

(a) the IBAC must give the relevant principal officer of that public body an opportunity to respond to the adverse material within 3 months or the later time agreed with –

and the amended version replaces ‘agreed with’ with ‘determined by’ –

the IBAC; and

(b) if the relevant principal officer responds within the time referred to in paragraph (a), the IBAC must fairly set out each element of the response in its report; and

(c) if the relevant principal officer does not respond within the time referred to in paragraph (a), the IBAC may transmit the report to the Parliament regardless.”.

Under subclause (2) there is also another amendment. This starts off:

(2) For section 162(3) of the Principal Act substitute –

“(3) If the IBAC intends to include in a report under this section a comment or opinion which is adverse to any person –

(a) the IBAC must give the person an opportunity to respond to the adverse material within 3 months or the later time agreed with –

where ‘agreed with’ has been deleted and ‘determined by’ has been inserted –

the IBAC; and

(b) if the person responds within the time referred to in paragraph (a), the IBAC must fairly set out each element of the response in its report; and

(c) if the person does not respond within the time referred to in paragraph (a), the IBAC may transmit the report to the Parliament regardless.”.

So on these amendments it is not clear whether IBAC has been consulted in development of the proposed time frame of three months, which IBAC may consider excessive. It is also unclear if any of the organisations subject to IBAC’s jurisdiction – Victoria Police, the Police Association Victoria on behalf of its members, government departments and others – have been consulted on the three-month time frame. Given historical matters, the Department of Justice and Community Safety is aware more complicated matters may take longer than three months for organisations or individuals to respond, and such a limit will be opposed. It is also unclear what mechanism is available in the bill to resolve any disagreement on the need for a longer time frame. It is likely that individuals or public bodies subject to adverse findings by IBAC will seek the maximum time for providing a response, which may lead to delays in IBAC publishing special reports, contrary to the bill’s intention to enable more timely reporting of investigations. So if we want to get that timely reporting of investigations, this will actually be a hindrance to that.

The amendments proposed by Mr Davis to his past amendments in this bill specify that the time will be ‘determined by’ the IBAC rather than ‘agreed with’ the IBAC. Mr Davis’s amendments propose an amendment that does not address the above issue – that individuals or public bodies are likely to always respond at the latest permissible time, being three months, even when the relative complexity and volume of the adverse findings and associated materials do not warrant it. In the event that the principles of procedural fairness would reasonably allow for a shorter time frame, this could lead to delay. This could result in inadvertent delays in IBAC finalising investigations and publishing reports. Also, procedural fairness requirements are an important protection of a person’s rights, given the impact that adverse findings may have upon their reputation, health and wellbeing. It has been noted that the Supreme Court has found that IBAC has not afforded procedural fairness in Operation Sandon by not providing Mr Woodman with footnotes relevant to the evidence against him.

On the procedural fairness for subjects, clause 6 of the bill – that was clause 5 that I went through – proposes that section 162AA seeks to allow IBAC to publish reports that contain materials being challenged in court. IBAC reports can have serious ramifications for individuals identified in those reports. For the public to have confidence in IBAC’s findings and in IBAC, individuals subject to investigation must be provided with an appropriate opportunity to respond to IBAC’s findings and to challenge those findings they consider are inaccurate. The natural justice and associated processes in the IBAC act provide important protections for an individual subject to adverse comment in a public report. The IBAC act balances the vital role that IBAC undertakes in investigating and exposing corruption and misconduct, with the rights of individuals to be able to review and provide comment on any adverse findings which IBAC considers may apply to them before that material is made public. It is critical that judicial oversight supports procedural fairness requirements in ensuring that people are given a reasonable opportunity to respond to adverse material. These requirements ensure that IBAC’s processes are fair and that findings in IBAC reports are made with all available evidence.

The opposition’s proposed provisions under section 162AA may undermine the ability of subjects of an investigation to challenge the actions of IBAC and have the Supreme Court determine whether they have been provided natural justice or procedural fairness. These existing protections in section 162(5) are critically important due to the coercive powers provided to IBAC. As set out by Mr Davis in 162AA:

Special report may be transmitted regardless of court proceedings

The IBAC may cause a report to be transmitted to each House of the Parliament under section 162 despite any proceedings that are pending in a court in relation to –

(a) the subject matter of the report; or

(b) any other matter or thing that may be relevant to the report.

It is not far fetched to imagine a scenario where the proposed provision may lead to a case in which IBAC publishes a report and the Supreme Court later finds that the subject of the adverse findings was not provided an appropriate opportunity to respond. In this scenario it is not clear how the Supreme Court could grant an effective remedy, as it will be too late to provide the person or body with the appropriate time to respond to the adverse material.

The proposed provision also appears to contradict section 162(5) of the IBAC act, which prevents IBAC from including in its reports any information which would prejudice a criminal investigation, criminal proceedings or other legal proceedings. If the IBAC is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in a report under this section, the IBAC must not include in the report any information which would prejudice the criminal investigations, criminal proceedings or other legal proceedings. Read together, section 162(5) and section 162AA create uncertainty about how IBAC is to proceed in circumstances where legal proceedings are pending. If IBAC proceeds to table a report to Parliament that may prejudice legal proceedings, this undermines the integrity of the court process and the right for individuals to seek effective remedy from the court.

There is also a risk that contempt of court proceedings may apply if IBAC tables a report to Parliament which prejudices a legal proceeding. A person subject to an IBAC investigation may be successful in procedural fairness proceedings. Under the proposed amendments, a report could be published under Mr Davis’s proposed section 162AA despite the fact that a person is later found not to have been afforded procedural fairness. The subsequent remedy of the court would be rendered futile and undermine the practical protections of procedural fairness. The proposal to enable IBAC to publish reports that contain material that is the subject of a court proceeding may create inconsistency with other provisions in the IBAC act and may place IBAC at risk of being in contempt of court if it transmits a report that prejudiced a court proceeding.

To expand upon this point, I would like to remind the house of the current provisions that exist. In reference to clause 4 of Mr Davis’s bill, IBAC currently has sound provisions for how to apply to the Supreme Court to determine secrecy or privilege requirements. These procedures are well established and set the appropriate precedent that the Supreme Court is the superior court of Victoria with unlimited jurisdiction, as is established in the Victorian constitution. If the house will indulge me, and for the benefit of Mr Davis, the relevant provisions contained in the IBAC act are sections 59L to N, sections 100 to 101 and sections 146 to 148, which provide for the process of applying to the Supreme Court to determine privilege or application of secrecy requirements and how such claims are to be determined by the court or applied to an examination.

Sheena WATT (Northern Metropolitan) (10:42): It is good to take a moment today, before I begin my remarks on the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022 that we have got before us, to say that this seems a little familiar. I join with my colleagues in speaking in opposition to the bill introduced by Mr Davis. I am going to take a moment – probably more than a moment, if you can indulge me, Acting President Terpstra – to remind members of this chamber that this is not the first time that Mr Davis has introduced a similar bill. I, like you, Acting President, have discussed this at SARC, the Scrutiny of Acts and Regulations Committee, which has indeed considered this bill from time to time in its various forms. I will say that this is very similar to those introduced earlier. Mr Davis in fact introduced a bill with the same provisions just last year, and I am trying my best to recall whether or not I made a contribution on that. I have indeed made a contribution on a number of bills that speak to integrity and the integrity agencies in our state. Of course there are some pieces that speak directly to this bill before us, but whilst I will get to those in a moment, I will just say that this is mighty familiar.

As I have highlighted in previous contributions to previous iterations of this bill, there are some serious flaws that have gone into its drafting, flaws that have been circulated through this chamber from time to time. I know that I and other members on this side of the chamber have considered this bill a great number of times and have looked at those flaws and really highlighted them to the chamber – any bill that goes to integrity matters in this state is worthy of this, because the Andrews Labor government does take integrity matters so very seriously. The IBAC act in fact balances the vital role that IBAC does play in investigating and exposing corruption and misconduct in our state with the right of individuals to be able to review and provide comment on any adverse findings which IBAC considers may apply to them before that material is made public. It is critical that judicial oversight supports procedural fairness requirements to ensure that people are given a reasonable opportunity to respond to adverse material, because that is indeed the right thing to do. Of course these requirements ensure that IBAC’s processes are fair and that findings of integrity agencies such as IBAC are made with all available evidence.

The proposed provision under new section 162AA may undermine the ability of subjects of an investigation to challenge the actions of IBAC and have the Supreme Court determine whether they have been provided natural justice or indeed procedural fairness. The existing provisions in section 162(5) are critically important due to the coercive powers provided to IBAC. As set out by Mr Davis in 162AA:

Special report may be transmitted regardless of court proceedings

The IBAC may cause a report to be transmitted to each House of the Parliament under section 162 despite any proceedings that are pending in a court in relation to –

(a) the subject matter of the report; or

(b) any other matter or thing that may be relevant to the report.

It is not far fetched that a scenario may come to be where the proposed provision may lead to a case in which IBAC publishes a report where the Supreme Court later finds the subjects of the adverse findings were not provided with an appropriate opportunity to respond, and as I said earlier, that is quite critical. In this scenario it is not clear how the Supreme Court could grant an effective remedy, as it would be too late to provide a person or a body the appropriate time to respond to the adverse material. The proposed provision also appears to contradict section 162(5) of the IBAC act, which prevents IBAC from including in its reports any information which would prejudice a criminal investigation, criminal proceedings or other legal proceedings. If the IBAC is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in a report under this section, the IBAC must not include in the report any information which would prejudice their criminal investigation, criminal proceedings or indeed any other legal proceedings. If that were to happen, of course we would have serious jeopardy of procedural fairness. This is a real concern and is worthy of consideration in this chamber. I thank the members, including Mr McIntosh, who outlined some of the impacts of that to the chamber earlier, and of course I know that there are other members of our side that really want to highlight just how significant this is.

Read together, section 162A and new section 162AA could create uncertainty about how IBAC is to proceed in circumstances where legal proceedings are pending, and that indeed can happen. If IBAC proceeds to table a report to Parliament that may prejudice legal proceedings that undermine the integrity of the court processes and the rights of individuals to seek effective remedy from the court, there is also a risk that contempt of proceedings may apply if IBAC tables a report to our Parliament which prejudices a legal proceeding. Let me say it again, because it is worthy of being repeated: the proposal by those opposite would enable IBAC to publish reports that contain material that are the subject of court proceedings, that may create inconsistencies with other provisions of the IBAC act and that may place IBAC at risk of being in contempt of court if it transmits a report that prejudices a court proceeding.

It is worth reminding the chamber before us of the current provisions that exist. In reference to clause 4 of Mr Davis’s bill, as we are discussing here, IBAC currently has sound provisions for how to apply to the Supreme Court to determine secrecy or privilege requirements, and they certainly may and do come up from time to time. These procedures are well established and set the appropriate precedent within the Supreme Court. The precedent is that the Supreme Court is the superior court of our state here in Victoria with unlimited jurisdiction, as established in the Victorian constitution. These provisions are worthy of significant reflection. The amendments provided by Mr Davis seek to insert ‘determined with as much speed’ into three of the sections I have mentioned. That is – and I am just repeating them for you in case – I would like to draw attention to relevant provisions that I think should probably be read. They are section 59L to N, sections 100 to 101 and sections 146 to 148. These three provisions provide for the process of applying to the Supreme Court to determine privilege or secrecy requirements and how such claims are to be determined by the court or applied to an examination. As I said, we really do need to consider the intersection with the Supreme Court because I am not convinced that advice has been received that indicates whether or not these amendments to the IBAC act would actually increase the speed at which these matters are heard. This bill does not make any reference to altering section 85 of the constitution, so therefore how would the bill make any changes whatsoever to the powers of the Supreme Court?

The bill before us – and Acting President, it is good to see you again – also provides a three-month time line to respond to adverse findings in an IBAC report, which is proposed in clause 5 for section 162(2). Unfortunately, it seems that rather than resulting in more timely reporting, there is a risk that the time line might in fact result in longer delays, and that is not what we want to see. The bill proposes a three-month time line, but for many investigations three months is longer than IBAC currently provides for responses to those adverse findings. Therefore we run the risk of actually increasing some public reporting time lines, and as per usual, we have seen a really significant need for some much more considered and substantial amendments in the bill.

But what does this bill say on the matter of more complex cases, where a longer time might be required ‍– those really complex ones? Well, it says nothing. You heard that right – it does not set out how to dissolve any disagreements on the need for longer time frames when they are indeed required. It is clear that although this bill seeks to have applications for determinations of privilege dealt with more quickly, the drafting of the provisions in the opposition’s bill, approached in their half-hearted and ill-considered way, may not achieve this intended purpose.

We have a really strong record here in the Andrews Labor government of strengthening IBAC and integrity agencies through legislation and support, and we will continue to give IBAC broad powers to conduct its investigations and the resources it needs to support its work. It is worth highlighting – and I believe I did speak to this in a previous contribution to a bill on this matter – that the state budget 2022–23 invested $32.1 million over four years in additional funding to IBAC, on top of its annual base funding, with a record $61.9 million in the year 2022–23, and by the end of the forward estimates IBAC funding will be double what it was when we came to government in 2014. I have recalled a number of contributions made during question time by the Attorney-General in outlining the significant budget commitments made by the Andrews Labor government to IBAC for it to continue to do its good work, and it has featured very prominently in question time.

Funding for IBAC in proportion to the public sector workforce it holds to account is higher in Victoria than that of other states. Let me take a moment to reinforce that in this state the funding for holding Victoria’s public sector workforces to account is higher in proportion to other states. The budget boosts to IBAC, those that I have just spoken about, provide funding equivalent to $217.30 per Victorian public servant in 2022–23, compared to a New South Wales figure for their equivalent body, called ICAC, of $78.40. Yet it is worth noting that those two agencies conduct a fairly similar number of investigations through their work, and that is year by year.

We will continue to work with IBAC here in the team of the Andrews Labor government to consider their suggestions and to make sure they have what they need to continue to do the important work they do supporting the integrity of our state. Of course the government is entirely committed to working with our integrity agencies to improve legislation so that it supports their important work.

There is of course more to be done and the government is happy to consider that, but when it comes to what is before us the amendments put forward by Mr Davis do not achieve their purpose. They would introduce potential inconsistencies into legislation and erode protections for natural justice that are afforded to those under investigation by IBAC. It is for these reasons that the government will not be supporting the amendments before us today.

There is of course more that I could say, but I know that there are in fact other speakers keen to join me in making a contribution on the IBAC timely reporting bill before us today. Thank you very much for the opportunity to make a contribution on the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022, and I reaffirm that the government’s position is to not support it today.

Sonja TERPSTRA (North-Eastern Metropolitan) (10:57): I also rise to make a contribution on this bill brought by Mr Davis, the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022, and I rise to make a contribution in opposition to this bill. The government does not support this bill, and I encourage all in this chamber to also oppose this bill. I have had the benefit of listening to other speakers’ contributions on this bill, and I think the thing that is really apparent with this bill is that Mr Davis did introduce a bill with the same provisions last year. It was highlighted in the previous debate that there are serious holes in the drafting of these bills, so I seek to highlight some of those, and I know my colleagues who have also spoken on this bill have done similar things.

Before I begin, I note Mr Davis’s interest in this issue. It is something that he has championed throughout the course of the last Parliament and of course this Parliament, but obviously a bill of this nature and the area that Mr Davis has an interest in is an area that is very technical. In particular, the legislation that he brings, as I said, does have holes in it. It is something that I note Mr McIntosh talked about: you might have a great idea, but bringing a bill that is ill-conceived and I guess sloppy in its sort of –

A member: Very concerning.

Sonja TERPSTRA: Yes, it is very concerning, because it does not actually achieve what is stated and in fact can cause more issues than it seeks to resolve, and I will get to those issues in a moment.

Nevertheless, before I begin, the government recognises how important integrity agencies are, and they have an important role to play. The government continues to give IBAC broad powers to conduct its investigations and the resources it needs to support its work. I know this has been commented upon before in this chamber: whenever IBAC has asked for further funding from this government, this government has given it funding. 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, and by the end of the forward estimates IBAC funding will be double what it was when we came to government in 2014. There can be no question and no doubt at all about this government’s support for IBAC to continue to do its good work. It is something that we take very seriously over here on the government benches.

Funding for IBAC in proportion to the public sector workforce, which they hold to account, is higher in Victoria than in any other state, and you can see that support for it is demonstrable by this government. The budget boost to IBAC provided funding equivalent to $217 per Victorian public servant in the 2022–23 budget compared to $78.40 per public servant for the New South Wales ICAC while undertaking a similar number of investigations. So you can see that we have absolutely provided the resources and the support that that agency needs.

We will continue to work with them and consider their suggestions to make sure they have what they need to do their important work. There is a very well known saying: when good people do nothing, evil flourishes. That is why we make sure we fund these agencies and give them the support they need. When you talk about some of the stuff that has happened in the past – I could mention Ventnor, for example, and the land redevelopment deals of those opposite – we can only just imagine what it would be like if those opposite were in government. You could only imagine, because it will be a long time before they are on this side of the chamber, I can tell you that. Nevertheless it always gets a rise out of them over there when I remind them of the things that they have done in the past. I could also mention ‍–

Members interjecting.

The ACTING PRESIDENT (John Berger): Order! Ms Terpstra to continue without interruption.

Sonja TERPSTRA: Thank you, Acting President. You have drawn the ire of the Acting President over there on the opposition benches. Again I could certainly go on and talk more about some of the things that happened when those opposite were in government. We know that some of the legacy issues that continue to be determined have come from those opposite, let me tell you.

But I will get into one of the issues that I touched on before: Mr Davis’s ill-conceived and sloppy approach to these sorts of things. One of the things that is critically important, and this has been something that has been the subject of commentary in the media as well, is procedural fairness for subjects. Clause 6 of the bill seeks to allow IBAC to publish reports that contain material being challenged in court. IBAC reports can have serious ramifications for individuals identified in those reports, so this raises issues of procedural fairness to that person being named by an agency. I think anyone who is named as part of any investigation that agency might do should have the right to respond to those things. That is effectively what procedural fairness is: if an individual has perhaps been implicated in some kind of investigation, they should have the right to respond to those sorts of things. We have seen some of those things play out in recent events with very serious and dire consequences. Nobody wants somebody to be adversely impacted. There are issues of reputation and standing in one’s community, and these things need to be balanced.

For the public to have confidence in IBAC, individuals subject to an investigation must be provided with the appropriate opportunity to respond. Like I said, it is a very challenging but necessary balancing act. There is a right for the public to know and understand what is being investigated, but also a person has a right to privacy. I must say, as a member of the Scrutiny of Acts and Regulations Committee, one of the things that we did recently was a human rights analysis. The job of SARC is to review legislation against the charter of human rights, and for another bill, which will be coming to this chamber later on, we did a recent human rights analysis, but it is the same principle. People have a right to privacy, so often you have got to balance legislative powers against somebody’s right to privacy as a human right. I know Mr Limbrick in this chamber has a keen interest in human rights in this chamber, so I will be very interested to hear his views on these bills.

Tom McIntosh: It’s a bit lost on those opposite.

Sonja TERPSTRA: Yes, absolutely right, Mr McIntosh. Again, these are very serious matters and that is why it is important to make sure that the legislation that is being contemplated absolutely gets right the balance for these people.

The natural justice and associated processes in the Independent Broad-based Anti-corruption Commission Act 2011 provide important protections for individuals against adverse comment in a public report, and IBAC balances those roles, as I said. It is something that they need to do in their decision about whether they publish information and the like, so it is critical that there is judicial oversight that supports procedural fairness requirements to ensure that people are given a reasonable opportunity to respond to adverse material. That does not necessarily mean adverse findings; it could be anything. ‘Adverse material’ is much broader, and a person should have the right to respond. These requirements ensure that IBAC’s processes are fair and that findings in the IBAC report are made with all available evidence. So the opposition’s proposed provision under section 162AA may undermine the ability of subjects of an investigation to challenge the actions of IBAC and have the Supreme Court determine whether they were provided natural justice or procedural fairness. That is a very serious matter, and I note that is something we on this side of the chamber take very seriously. As I said earlier, we recognise that IBAC has a critically important role in investigating corruption, but they have got very important considerations to balance as well.

The existing provisions in section 162(5) are critically important due to the coercive powers provided to IBAC. It is set out by Mr Davis in proposed section 162AA, and I will not bother to read that out; I think Mr McIntosh went through that in detail. Nevertheless it is not out of the realms of possibility to consider a scenario where the proposed provision may actually lead to a situation where IBAC publishes a report and later on the Supreme Court finds the subject of adverse findings was not provided an appropriate opportunity to respond.

We have seen similar circumstances, not particularly on procedural fairness, in other jurisdictions in Australia where the Supreme Court has overturned corruption findings – in New South Wales, for example, with ICAC. Again, it is acknowledging that the Supreme Court has an inherent jurisdiction to review these matters, and that is important. So what Mr Davis is bringing in is not really going to address that. It is not clear how the Supreme Court could grant an effective remedy, as it would be too late to provide the person or body the appropriate time to respond to the adverse material. It is like the horse has already bolted. This provision does not address that. The denial of procedural fairness has already occurred for that person, and that is the problem. That is why this provision is ill conceived.

Clause 4, ‘Determination of claim’, inserts an amendment after section 59N(6) of the principal act, and it says:

It is the intention of the Parliament that an application under section 59M be determined with as much speed as the requirements of this Act and the proper consideration of the application permit.

But it is not clear, again, whether the insertion of this provision will have any practical effect on the speed with which the Supreme Court considers applications to determine privilege, for example. There has been no consultation with the Supreme Court to determine the effect of any attempt to expedite these applications. I am not sure whether there has even been consultation with relevant stakeholders, like the Law Institute of Victoria and other people in the legal community, on their views about these sorts of provisions.

Matthew Bach interjected.

Sonja TERPSTRA: I am going to ignore that interjection. It was pretty rude, Dr Bach. Given my former profession as a lawyer, I think that is highly, highly offensive.

Matthew Bach interjected.

The ACTING PRESIDENT (John Berger): Order! Dr Bach!

Sonja TERPSTRA: Thank you, Acting President. Again, section 85 of the Constitution Act 1975 vests the Supreme Court with unlimited jurisdiction. 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 under this bill do not explicitly reference an intention to alter or vary the Supreme Court’s unlimited jurisdiction. Under section 85 of the Constitution Act, the Supreme Court may not support an attempt to alter or vary its jurisdiction without explicit reference to section 85, and in any event may be concerned about any attempt that may appear to limit the Supreme Court’s inherent jurisdiction to manage its own procedure. Again, it is ill conceived and poorly thought out, and the bill and these provisions do not go to these issues. I consider that what is potentially going to be created would be a legal minefield.

Despite IBAC’s public commentary that matters are being delayed due to court proceedings, recent published decisions, such as Woodman v. IBAC, 2022, 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. The courts are busy places. We recognise that one of the really critical pillars of our legal system is access to justice, but the courts are busy. Certainly what we see with the sorts of provisions that are being proposed by Mr Davis’s bill is that they are not going to address any of these problems, and in fact I would submit to the chamber that this bill is going to make them worse and potentially create more legal problems.

On the issue of the rule of law and the unlimited jurisdiction of the Supreme Court, just one final point on that, because I know the clock is going to beat me shortly –

Matthew Bach: Praise God!

Sonja TERPSTRA: I am going to take up that interjection that Dr Bach made, and I ask that he withdraw that comment. It was offensive, and I ask that he withdraw.

Matthew Bach: I seek your guidance, Acting President. The expression I used was ‘Praise God’. If the member is offended by that for some reason, I would like to know why.

Sonja TERPSTRA: He is using the Lord’s name in vain for his own purposes.

The ACTING PRESIDENT (John Berger): Ms Terpstra, can I ask you to continue your contribution.

Sonja TERPSTRA: I ask the member to withdraw.

The ACTING PRESIDENT (John Berger): Dr Bach, I agree that the member takes offence to that remark, and I ask you to withdraw.

Matthew Bach: Thank you, Acting President, and of course I abide by your ruling. But is that how this chamber normally operates, that any statement –

Sonja TERPSTRA: This is not a matter for debate. You have issued a ruling that the member withdraw, and I would ask that he withdraw without qualification.

The ACTING PRESIDENT (John Berger): I have asked the member to withdraw. Dr Bach, will you withdraw?

Matthew Bach: I withdraw, of course.

David Davis: On a point of order, Acting President, I think this might be a case where what was said was not objectively offensive, and whilst the member may be slightly offended, it is not quite enough that anything that she feels –

Sonja TERPSTRA: Further to the point of order, Mr Davis –

Members interjecting.

The ACTING PRESIDENT (John Berger): Order! I have issued an instruction for Dr Bach to withdraw his remark – he has – and as such I ask Ms Terpstra to continue.

Sonja TERPSTRA: Thank you, Acting President. I think the clock has beaten me. I conclude my contribution there.

David DAVIS (Southern Metropolitan) (11:12): I want to make a couple of brief points here. This is an important bill. It is a bill that helps to enable IBAC to better function. It is true that in May last year, 2022, the then IBAC Commissioner Robert Redlich wrote to both me and the Attorney-General the Honourable Jaclyn Symes pointing out a number of difficulties he was having. This bill did come out of that, and I make the point that it is directly responsive to the concerns and issues that IBAC has been facing. Equally, in the series of steps that we went through with this bill, including the Scrutiny of Acts and Regulations Committee’s examination of the bill and a formal discussion between the crossbench, the opposition and the former commissioner the Honourable Robert Redlich, a set of suggestions were made, including, I might add, by the Centre for Public Integrity. I am going to read some of the correspondence that I have put to SARC, which I will quote directly. In my letter to SARC in May I said:

Since the Independent Broad-based Anti-corruption Commission Amendment (Facilitation of Timely Reporting) Bill 2022 was tabled, I can indicate that significant consultation has occurred with colleagues … and other experts in the field, including the Honourable Robert Redlich AM KC …

I also noted the comments made by the Centre for Public Integrity, where they said:

We agree unreservedly that some change is required in order to facilitate timely reporting, but in our view the language used is apt to create difficulty. Is it possible to have the phrase “as agreed with the IBAC” be changed to “as determined by the IBAC” …

And then they went on to say:

If these particular amendments were able to be achieved, that would obviate the need for the proposed s 162AA. In our view, this would be far preferable because the inclusion of that section as currently drafted could create real difficulties …

and so forth. I quote my letter to SARC:

We have accepted this advice and the words “agreed with” … will be replaced with the words “determined by” … and the Bill’s clause 6 would be omitted. Consequently, a new section 162AA would not be inserted.

We corresponded with SARC to that effect in its Alert Digest No. 5 of May 2023 and circulated the amendments at the time, so those amendments are available. The community that I have spoken to on this matter, a range of people both in the integrity community and elsewhere, have agreed that this –

Jaclyn Symes: The integrity community?

David DAVIS: Yes, I think there are people who are interested in greater integrity in government, which certainly does not include the current government, I might add. Leaving that aside, we have sincerely listened and put forward a set of modifications, amendments, that address, we believe, the points. Certainly in the discussion that was held between the crossbench, the opposition and indeed the Honourable Robert Redlich, this was regarded as a better and satisfactory way forward. So they are the points.

It is something where a balance has to be struck. It is a matter where IBAC needs to be able to do its work. Obviously, people who are reflected upon need to have the opportunity to respond to that in a timely and reasonable way, but ‘timely and reasonable’ does not mean endless procedures in the Supreme Court. It does not mean endless occasions. And I will just knock this on the head: clearly, as one of the government speakers said, if you want to limit the jurisdiction of the Supreme Court, you need to amend section 85, and we do not seek to do that. It does not actually limit the jurisdiction of the Supreme Court in any way. It sends a clear signal, and the Supreme Court can of course take steps as it sees fit on any particular point.

I want to be quite clear; this is a modest bill. It gives a little bit more clarity and a bit more strength to IBAC to move forward. We have listened to the points made by the Centre for Public Integrity, Robert Redlich and others, and we have indicated a preparedness to modify the bill, hence the circulated amendments. I would urge people to support the bill.

Motion agreed to.

Read second time.

Committed.

Committee

Clauses 1 to 4 agreed to.

Clause 5 (11:19)

David DAVIS: These amendments come from the discussions that have occurred since the bill was introduced. There was a forum, which had a range of crossbench members, members of the opposition, the Centre for Public Integrity and others, including the Honourable Robert Redlich AM KC. There was a discussion on this and a series of other integrity matters. We have indicated, in response to that and the Centre for Public Integrity’s views, that we would change the bill. I will quote what the Centre for Public Integrity said in their formal correspondence. They said:

We agree unreservedly that some change is required in order to facilitate timely reporting, but in our view the language used is apt to create difficulties. Is it possible to have the phrase “as agreed with the IBAC” be changed to “as determined by the IBAC” (because getting IBAC and any party the subject of a proposed adverse finding to ‘agree’ on anything might prove impossible)?

If these particular amendments were able to be achieved, that would obviate the need for the proposed s 162AA. In our view, this would be far preferable because …

and they go on. We accept the advice from the Centre for Public Integrity, we accept the advice from some on the crossbench and we accept advice from others in the integrity community, including the Honourable Robert Redlich.

In that circumstance, I move our amendments 1 and 2:

1. Clause 5, line 34, omit “agreed with” and insert “determined by”.

2. Clause 5, page 3, line 19, omit “agreed with” and insert “determined by”.

As I have indicated, and as was indicated by the Centre for Public Integrity, this would then obviate the need for that further clause.

Jaclyn SYMES: Thanks, Mr Davis – a bit of deja vu here. You will recall we had a bit of an exchange in relation to this clause and how –

David DAVIS: But not our amendments.

Jaclyn SYMES: Well, it is just one word, and I do not think the word changes the fundamental flaws with the clauses proposed. The principle of timely reporting – sure, we can all support something like that. But you have got to have a bill that is remotely workable. My advice is that, given historical matters, the Department of Justice and Community Safety is aware of more complicated matters that often take greater than three months to respond to for organisations and individuals, so the three-month limit is a bit of an issue. The starting-of-the-clock issue is not resolved by virtue of this amendment. It is likely that individuals or public bodies that are subject to adverse findings would always seek to use the maximum time – we know that by different organisations that may be attracted to litigation – and seeking to use maximum time, if it is available, is something that would often be exercised. We think that this would just lead to further delays, because you would just have to keep starting the three months once somebody received a report that contained adverse findings.

I acknowledge that you have changed the term to ‘determined’. I am wondering if you could explain what happens in the event that there is a disagreement on that determination. Is that a mechanism that could then be brought to the Supreme Court under a separate cause of action when somebody wanted to challenge that? I am a little bit unclear about that. Again, it just stands that individuals will still seek to respond at the latest permissible time, being three months, even when the relative complexity and volume of the adverse findings do not warrant it. It does not seem to facilitate timely reporting, it actually seems to create a mechanism where somebody could keep leapfrogging every three months.

David DAVIS: I do not pretend, as I did not pretend previously, that this bill will solve all of the problems here. That is neither the intention nor feasible. As you correctly outline, certain parties will seek to drag proceedings out in every way they can. This does send the message and does give greater authority to IBAC to move forward. ‘Agreed with’ being replaced by ‘determined by’ gives IBAC a clearer head of power. That is the first point I would make.

The second point, when viewed with the removal of clause 6 and new section 162AA not proceeding, would lead to a position – yes, it is true, IBAC would not be able to just table peremptorily. Nonetheless it still gives them a greater authority to go forward and sends a signal. As I said in my summing up, one of the Labor members made the point that to limit the jurisdiction of the Supreme Court would require a section 85 statement. There is no limitation of the jurisdiction of the Supreme Court, so we are clear about that. We are attacked for limiting the jurisdiction of the Supreme Court and then attacked for not limiting the jurisdiction of the Supreme Court. What we have done here is made a very modest bill to give a little bit of extra leverage to IBAC to table and to move forward. That is all it is. It is not going to change the world.

As you recall, the genesis of this bill is the letter that came to you and me last year. It was clearly a plea from IBAC asking the chamber and the Parliament to provide some additional signal that timely reporting is important, and this bill provides such a signal and provides a slightly stronger mechanism. I am not going to say it is going to provide all mechanisms. We cannot improve the law to perfection in one small bill, and that is not what this seeks to do. It is just a signal and a slightly stronger position for IBAC. Removing clause 6 means that there is no question of the Supreme Court’s jurisdiction being limited in any way, so it is just that signal. It is not perfect; I accept that, but it is better than what we have got, somewhat.

Jaclyn SYMES: Thank you for that explanation, Mr Davis. I am not satisfied of the merit of your bill, but I am satisfied that the amendments are seeking to improve it slightly. I do not oppose the amendments.

Amendments agreed to; amended clause agreed to.

Clause 6 (11:28)

David DAVIS: I think I have covered the matters around this. It does seek to amend the Independent Broad-based Anti-corruption Commission Act 2011 to enable IBAC to table a special report despite pending court proceedings, but we would not proceed with that. That will be dealt with, as I understand it, with the question that clause 6 stand part of the bill.

The DEPUTY PRESIDENT: That is correct. Your amendment seeks to omit the clause. Those who are supporting your amendment should vote against the clause.

Clause negatived.

Clauses 7 and 8 agreed to.

Reported to house with amendments.

David DAVIS (Southern Metropolitan) (11:30): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

David DAVIS (Southern Metropolitan) (11:30): I move:

That the bill be now read a third time.

In doing so I thank honourable members for their contributions. I want to thank the Scrutiny of Acts and Regulations Committee, the Centre for Public Integrity, the Honourable Robert Redlich AM KC and colleagues on both sides of the house who have made sensible and practical comments. We have responded to improve the bill, and I hope that people recognise that. We think it is a sensible, balanced bill that helps lead to a better outcome for IBAC and for the prevention of corruption in this state.

The PRESIDENT: The question is:

That the bill be now read a third time and do pass.

Council divided on question:

Ayes (22): Matthew Bach, Jeff Bourman, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, David Ettershank, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nicholas McGowan, Evan Mulholland, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Rikkie-Lee Tyrrell

Noes (14): John Berger, Lizzie Blandthorn, Enver Erdogan, Jacinta Ermacora, Michael Galea, Shaun Leane, Tom McIntosh, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Question agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.25, the bill will be transmitted to the Assembly with a message requesting their agreement.