Wednesday, 30 August 2023

Bills

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

Second reading

Debate resumed on motion of David Davis:

That the bill be now read a second time.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (16:53): I have an opportunity to have a brief discussion on a bill this week that may come back another week, I assume, but at the outset I have had a good look at Mr Davis’s private members bill, and we do not oppose the intent of the private members bill. There are a few concerns I have with it. It has got some merit, but it is a bit messy the way it is and also, without making announcements today, there are issues that we as a government are looking closely at. Mr Davis’s bill does propose –

Members interjecting.

The PRESIDENT: There are a heap of conversations going on that could be had anywhere other than here.

Jaclyn SYMES: Thank you. Mr Davis, did you catch what I have been saying?

David Davis: Only partially. There was some hubbub.

Jaclyn SYMES: Oh, right. You will be pleased to know that of all of the motions and bills that you have put to this chamber, you are getting closer, because I am nearly there on this one.

There are some merits to this. There are some issues that Mr Davis’s bill does pick up that do need addressing, and I am happy to indicate that they are issues that we are aware of and are advancing ourselves. There are concerns with this bill in the way that it stands, and I will run through a few of those. As I said, the intent is quite good, but ultimately we cannot support this particular bill. We would caution that the drafting of the amendments in this way does miss a couple of key considerations that need to be further considered and subjected to further consultation and the like.

Overall Mr Davis’s bill proposes to amend the Independent Broad-based Anti-corruption Commission Act 2011 to expand their ability to publish recommendations. Currently section 159 of the IBAC act enables IBAC to make recommendations but requires recommendations that are not contained in a report to not be made publicly available. That is not to suggest that those reports are not used internally. Agencies have conversations with IBAC about issues they have identified. Obviously I am not privy to a lot of those particular conversations, but they are ways of highlighting issues with agencies that they need to address, and agencies are certainly grateful and made better for those interactions.

There is also the opportunity that IBAC have to use their existing framework to publish thematic reports. This is effectively quite often the result of smaller investigations either of smaller agencies that would be identified if you were to publish a public report or indeed of specific incidents. I think it is particularly easy to draw on the example of Victoria Police where they have thematic reports and have the opportunity to bring issues into the public domain in a de-identified way. Some of those reports have been on very serious topics, but they are a way for IBAC to ensure that, in the public interest, these are conversations that the public can have and issues that can be brought to the fore and examined more broadly.

Mr Davis’s bill contains a clause that relates to section 159(2). New subsection (2A) proposes that:

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.

As I said, in some ways some of that is being met by the ability of IBAC to have own-motion thematic reports and the like. There is also nothing in the non-publication report that stops IBAC being able to have those conversations and draw to the attention of individuals, agencies or the public sector particular incidents or particular concerns that they have indeed with a view to changing behaviour. Mr Davis’s proposed new subsection (2B) is:

If the IBAC publishes a recommendation in whole or part … the IBAC must also publish on its website a statement of the reasons why it considers publication is in the public interest.

I am a little curious about this requirement, and Mr Davis might want to elaborate a bit in his summing up. Like, really, if IBAC were to do this, it should be underpinned by being in the public interest. So I guess having an additional step is not without merit, but I do sort of question why you would ask this of IBAC.

In summary, the proposed changes in the bill would permit IBAC – if it considers it in the public interest to do so – to publish a recommendation which is not contained in a report on its website. I am just curious as to whether Mr Davis thinks that that is only on its website. Would they be able to further disseminate such material in the form of a report that is sent to people physically et cetera, or is it just the website? I was just a bit curious about that as well. A recommendation could be published if it relates to matters of an institutional nature and does not contain a comment or an opinion that is adverse to any person. This is sensible. IBAC would also be required to publish the statement, as I said, in relation to its reasons about the recommendation being in the public interest.

The intent is clear; it is just the application and the workability of these that need a little bit more teasing out. These are reforms that, in their substance, have been requested by IBAC because they acknowledge that they will enable more information about the work that they do to be made public in a more timely fashion, rather than having to wait to publish a formal report, whether that is a thematic report, which I was touching on before, or an educational report. It is sometimes better to wait for a theme to emerge to perhaps have more impact in relation to a topic that IBAC has identified. Having the choice to make it would be an important component of the proposals.

The other thing that just bothers me a little bit – and this is not necessarily a criticism of Mr Davis per se – is having lots of little bills at the same time. It is curious to me because, if you have an idea that you want to prosecute through a private members bill, that is fine, but if you have three consecutive bills that could quite easily have been considered as one bill, that would have been a better way to go. But, as I said, the other bills I had bigger issues with compared to this one. So it is nice to be not as negative towards a proposal that Mr Davis has put up compared to in previous times. But this is not the way that government approaches legislative reform. You are in a better position to consider a broader suite of reforms and how they interact with each other rather than through piecemeal approaches, which can end up with some unintended consequences.

As I said, it is not my intention to make any formal announcements in relation to the government’s work, because there are appropriate and necessary steps in relation to government legislative reform. But it would be best perhaps for me to revert to my overall observation at the start: that I believe this bill has merit. It is just the execution and the form and probably a few other things that mean we are slightly unaligned, and it is a little undercooked for my liking. I am certainly happy to give Mr Davis a commitment to brief him at the earliest time in relation to the government’s landing on its considerations of this matter. Again, it would be at a time where we would not be proposing to make such a piecemeal amendment one provision at a time. We feel we are best placed to appropriately consider the effects and tests of ramifications of changes to integrity bills in a much more fulsome manner.

As I said, it is important to think through the potential impacts of changes. Obviously for a robust integrity system this is a really important step because, by its nature, this is a system that requires a really important balancing between transparency and public accountability on one hand and fairness to those being investigated on the other. Both of these values are really important, and finding the right balance takes time, it takes nuance and indeed it requires careful consideration about how the changes might impact on the rights of individuals and on other processes, including other laws and other institutions. I think we saw last week another IBAC bill which was proposing to amend elements of the IBAC bill but had not given consideration to identical provisions in the Ombudsman Act 1973, for example. So it is complex, and again, this is not a criticism necessarily of Mr Davis’s intent, because this is a process that is quite complicated, and I am proposing that it would be bureaucrats that would give me advice in relation to those considerations. But, as I said, it is important when you are looking at reforms to the integrity system that you look at how they are interconnected as a whole and not take them in sound bite pieces. We are looking to make meaningful, thought-through reforms that work for our integrity agencies and work for our stakeholders, and of course the reason we are here is to actually work for Victorians and to provide confidence for them about transparency and accountability.

Probably the other thing to mention would be the role of the Integrity and Oversight Committee, which is the accountability parliamentary committee, which has an important function in relation to the consideration of our integrity agencies. It may be known to members that in the current inquiry into the performance of IBAC, the performance audit, this is a topic that has been featured in their public hearings. So again, not only am I a little concerned about the form of Mr Davis’s bill and the fact that the government would like to give closer consideration and consultation to such a change, but I would also be interested in what the IOC have to say in relation to their consideration of these matters. I am not sure about the timing of their report, but I believe that their hearings have concluded in relation to the performance audit of IBAC, so I suspect that we could expect that at some time in the near future. That would be an important piece of relevant information before landing a proposal of this nature.

I would like to just make mention of a couple of items. They are minor, but they are things that I think need to be accounted for when you are looking at a bill such as this. First of all, I have just got a few concerns that the bill as it is currently drafted does not seem to restrict IBAC from publishing recommendations where that publication might prejudice ongoing criminal investigations or active legal proceedings. The independence obviously of the judiciary is a fundamental pillar of our system. It rests on the separation of powers and acknowledges the three branches of the government, the executive and the courts, and it is essential that matters that go through the courts are allowed to run their course without interference from government or government agencies. That is why we would express some caution in relation to proceeding with this bill without giving a little bit of consideration to whether you would need some safeguards in relation to the impact that it could have on existing court proceedings. As I said, there is merit, but if you rush these types of things and give government agencies power to interfere with matters before the court, that is not a great outcome. Even the creation of uncertainty in relation to the ability to impact a court proceeding is something that we would want to ensure is protected against.

Another item that has been brought to my attention is that the bill does not in its current form appear to restrict IBAC from publishing recommendations that might identify individual persons. I certainly take Mr Davis’s word that his intention is certainly not to identify persons, but in the context of IBAC making recommendations about agencies it is important that the recommendations do not contain adverse comment or opinion about an individual. Sometimes small organisations and sometimes isolated incidents might not provide that protection. Of course personal privacy protections and other important safeguards such as natural justice processes are really important for IBAC to be giving consideration to before they are to publish a report or in fact any matter. When an IBAC report seeks to identify someone, even if they are not subject to adverse comment, IBAC must be required to consider whether doing so could unreasonably damage their reputation, safety or wellbeing. So there could be further consideration given to a safeguard in a bill such as Mr Davis’s private members bill where it applies to recommendations. You could build them into these provisions; that is something that we would want to consider before we were to proceed with such a proposal.

Getting to the end of the comments in relation to the details of this bill, the public interest statement or statement of reasons why IBAC thinks that it is in the public interest, I touched on this before but – and Mr Davis, I would be happy if you could touch on this later – how would this requirement work in practice? I do not think IBAC have given public comment in relation to that and their view on that. It might be worth testing it with them certainly in the development of our own material, but I am interested in whether you have given the justification for that. I am just not sure it is required, but I am certainly interested in why you think it is.

So again, it is another prospective amendment to the IBAC act. It is a little bit of deja vu, but it is a good conversation to have in relation to this one. You do want information going out to the public that informs the public of IBAC’s work and provides guidance, education and information to agencies and individuals about identified risks, themes and matters that could serve a public good in that information being out there. And I like the fact that the proposal is for IBAC to have that discretion, because in some instances they come across information that is really important to share with an agency but is not in the public interest to be shared more broadly, particularly in relation to the welfare of people that may be subject to those investigations. That is just one example of that.

So it is a noble objective, the bill, but we do caution that the changes are a little bit too simplistic and gloss over a couple of required safeguards. But it has been a good exercise to have a conversation about this and it has certainly sharpened my mind in relation to some of the similar issues that we are advancing through my office and our consideration of a range of improvements or a range of amendments to the IBAC framework. But again, this piecemeal approach is just not the way that I am in a position to progress this important topic. As I said, we have stood here time and time again on these matters and I think they do inform my overall work, so in that sense that is helpful, but it would be not the way I would like to legislate from a government perspective.

I guess I would end with again reiterating this government’s commitment to the ongoing work of strengthening the integrity system in Victoria. We certainly are committed to the integrity of the Parliament, the executive government, the public service and our entities, and IBAC and other agencies are important features of achieving that. We have already committed to a broad range of reforms to strengthen agencies across the board, including parliamentary integrity standards. It is why we delivered the Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Act 2019. It is why we have committed to implementing 21 recommendations in the IBAC and Ombudsman’s joint Watts report, and they are being advanced and will be in the Parliament in line with the recommended time lines that that report provided – that is, due next year. And it is why we have actually gone further in relation to those recommendations in Watts and committed to implementing three additional changes to further strengthen public trust and lift standards across the administration of all political parties in Victoria.

There is always more to do, and I give my personal commitment to keep listening and keep consulting, and I will always give due consideration to ideas that have been brought forward. I do thank Mr Davis for this bill. As I said, it is in alignment with a lot of my thinking. There are just a few things in here that do not quite work and are a little bit undercooked from our perspective in relation to teasing out a few of those issues that I raised. With that, this is the closest I have come to supporting one of Mr Davis’s bills, but I am not quite in a position to be able to support this bill today.

Business interrupted pursuant to sessional orders.