IBAC Amendment (Facilitation of Timely Reporting) Bill 2022

By John Berger

16 AUGUST 2023

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.