12 March 1991 - Current
INTEGRITY AND ACCOUNTABILITY LEGISLATION AMENDMENT (PUBLIC INTEREST DISCLOSURES, OVERSIGHT AND INDEPENDENCE) BILL 2018
05 February 2019
|ASSEMBLY||Second reading||Kim Wells|
Mr WELLS (Rowville) (17:56:09): I rise to speak on the Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018. I want to first off thank Minister Jennings for organising the detailed briefing with which we were provided. We are very grateful for that. I also acknowledge that the bill was introduced in the last Parliament, debated and passed through the house. It is obviously absolutely crucial in Victoria that we have a strong integrity system not just for the Independent Broad-based Anti-corruption Commission but for the Ombudsman and other integrity bodies to ensure that we have the ability to be able to get rid of and obviously eliminate corruption in the public service. It is equally important for those businesses in the private sector that are doing work with the government, which could be in many, many forms. Whether it be the private companies providing IT, security, education or health services, or whether it is building a road or a bridge, it is absolutely imperative that corruption is not part of any equation that has to do with the public service or the private sector providing services to the government. You just have to look around the world to see what corruption can do to a country. Look at Zimbabwe, which I have fortunately visited on a number of occasions for different family reasons. But the corruption actually destroys the moral fabric of the nation, and because the ministers do it, because members of Parliament do it, because the public service do it, then it is just an expected part of the society. I will mention through the speech our contribution through the Independent Broad-based Anti-corruption Commission Committee, which is a great committee formed by the government and the Parliament. It has had members from the National Party, the Greens, Labor and of course the Liberals. It is an outstanding committee. One of the trips that the committee took to look at frameworks around corruption bodies was to Hong Kong. Some decades ago, mainly in the 1970s, there was very serious corruption. One of the people addressing us told us that when she was being born her mother had to bribe nurses in the hospital to get more towels. Once one person in a hospital expects a bribe, then it is just the done thing. Another example given to us—it was obviously a number of decades ago—was with regard to firefighters. Before they would perform their role of putting out fires they wanted a gift. The situation just festered and it became worse and worse, and in the end Hong Kong had serious problems, so they took the bold step to bring in an overarching anti-corruption agency, which is now one of the best in the world. They have gone from a situation in the public service of having severe corruption issues to now having one of the very best—I guess with Northern Ireland—anti-corruption bodies in the world. So out of that adversity it worked well, and the Police Ombudsman for Northern Ireland, the PONI system, is also outstanding. We will not be opposing this bill, but we are going to be moving an amendment, and I would ask that that amendment be circulated now. Opposition amendments circulated by Mr WELLS under standing orders. Mr WELLS: The amendments being circulated are only small amendments, but they relate to an important part of this bill, and that is the issue of public hearings. This is not just a debate for Victoria but a worldwide debate. At what point should the Independent Broad-based Anti-corruption Commissioner, in our case, have the right or the legislative powers to be able to call for a public hearing? Public hearings are very beneficial, especially when you look at the investigation into the Department of Education and Training. They were public hearings, and the amount of information that came forward as a result of those public hearings was amazing. Obviously the other side of holding a public hearing is some people are concerned that if they are innocent, they will have reputational damage for life. No matter what happens in relation to the public hearing—they could be found not guilty—there will always be the chance that that information will come up on a Google search. Whenever you put in somebody’s name, the first thing that could come up on some occasions would be the issue of confronting or having to be brought before an IBAC public hearing. The reputational damage is also an important factor to take into account. As I said, it is not just an issue for Victoria, it is an issue right around the world—of when you should or when you should not have a public hearing. Many people prefer that hearings are held in private, and then if there is an issue in a private hearing, you could take the decision to hold a public hearing at some other time without reputational damage. But we as a coalition, as the opposition, have looked at the bill and have concerns around clause 119, which makes amendments to section 117(1) of the Independent Broad-based Anti-corruption Commission Act 2011. Part of the new clause that the government wants to implement is: (b) after paragraph (c) insert— “(d) the conduct that is the subject of the investigation may constitute— (i) serious corrupt conduct; or (ii) systemic corrupt conduct; or (iii) serious police personnel misconduct; or (iv) systemic police personnel misconduct.”. The reality is that that tightens and reduces the ability of the IBAC Commissioner to be able to freely hold a public investigation or public inquiry, because when the Commissioner at the moment, a he, is considering holding a public inquiry, he must take into consideration that this change is going to be factored in—serious corrupt conduct or systemic corrupt conduct or, in the case of an investigation into Victoria Police, serious police personnel misconduct or systemic police personnel misconduct. And when you look at what the Commissioner is able to use in the current act, it is so different. In the current Independent Broad-based Anti-corruption Commission act, 'Part 6—Examinations’, section 117(4) says: For the purposes of subsection (1)(b), the factors the IBAC may take into account in determining whether or not it is in the public interest to hold a public examination include, but are not limited to— (a) whether the corrupt conduct or the police personnel conduct being investigated is related to an individual and was an isolated incident or systemic in nature; (b) the benefit of exposing to the public, and making it aware of, corrupt conduct or police personnel misconduct; (c) in the case of police personnel conduct investigations, the seriousness of the matter being investigated. So that is significantly different and allows more free range for the IBAC Commissioner to be able to choose whether to have a public hearing or not. So we believe as part of our argument and our debate in the Parliament that implementing this change to section 117(1) is going to reduce the ability of the IBAC Commissioner to be able to hold public inquiries. If I go to the second-reading speech for this bill in the previous Parliament, it will become obvious why I am actually drawing on it at this point, because the comments of the current IBAC Commissioner and what was in the second-reading speech are quite different. The second-reading speech refers to: Public examinations are a key investigative tool that help IBAC to fulfil its primary function of exposing public sector corruption. The government, through the stronger system act, made key improvements to IBAC’s legislation by lowering the investigation threshold to make it easier for IBAC to investigate corrupt conduct. Following those reforms, the government conducted extensive public consultation on the broader integrity and accountability system, including IBAC’s public examination function. But then it goes on to say: The community’s views on public examinations were diverse. However, what was abundantly clear was the need to strike an appropriate balance between IBAC’s extraordinary powers, the benefits of public examinations and the greater potential for an IBAC investigation involving public examinations to unreasonably harm a person’s reputation and right to privacy. IBAC can currently hold a public examination if there are exceptional circumstances, it is in the public interest to hold a public examination, and a public examination would not cause unreasonable damage to a person’s reputation, safety or wellbeing. The bill will add an additional requirement to better protect the rights and welfare of individuals. When deciding whether to hold a public examination, the bill will require IBAC to consider on reasonable grounds that the conduct to be investigated is serious or systemic corrupt conduct or serious or systemic police personnel misconduct— which is what I referred to before. The issue that we have with the changes that are being made and the second-reading speech is that they are actually contrary to what the IBAC Commissioner has actually asked for. So it might be well and good to say that 'the community’s views on public examinations were diverse’—and we agree that it has to strike the right balance—but surely the views of the actual IBAC Commissioner should be taken into account. This is what he said in his annual report 2017–18. This is commissioner Robert Redlich: Investigations are integral to IBAC’s work in exposing as well as deterring and preventing public sector corruption and police misconduct. In 2017/18 we commenced 27 investigations and completed 14 (including preliminary inquiries) … Two of these resulted in special reports tabled before Parliament: Operation Tone, concerning drug use and associated corrupt conduct involving Ambulance Victoria paramedics … ; and, Operation Lansdowne, an investigation into alleged serious corruption in the Victorian vocational education and training and public transport sectors … As part of Operation Lansdowne, IBAC held public examinations in June and July 2017 … Public examinations are a critical investigative tool in further exposing and preventing public sector corruption and police misconduct. They help educate the public sector and community about the impact of corruption and police misconduct and how it can be prevented. They have prompted the public sector to examine and improve its systems and practices. And they have encouraged further credible complaints about corruption. Our Act— this is the Commissioner speaking— states that public examinations may only be held in exceptional circumstances. IBAC has used this power carefully, holding five public examinations from the 69 investigations (including preliminary inquiries) that we have completed. He makes a very good point that he needs that ability to be able to investigate. He also makes the point that it is a very good way of educating the public sector—that is, if you hold a public inquiry, then the public inquiry is able to be broadcast across all the media. And if you are involved in any corrupt activity and you saw what was going on in the County Court where they were holding these public examinations into the education department, you would be pretty quick to own up because you would know that IBAC was coming to get you one way or another if you were involved in corrupt activity. I also refer to comments made by Commissioner Redlich at a closed hearing on 7 May 2018. This is on the Independent Broad-based Anti-corruption Commission Committee website so it is a public transcript: Mr REDLICH—Then if I can go to the examinations, as the committee would probably be aware, to have a public examination requires an exceptional circumstance test and under the present bill requires even further limitations. The present bill before Parliament— this is the one he is referring to— proposes additional limitations, such as 'endemic’, 'systemic’ and 'serious’. The various forms of the legislation of course have gone through successive governments now, and if I may speak frankly, the only reason I can see why anyone would want to impose this level of limitation is to appease a particular interest group—a powerful interest group—and, with great respect, that ought not be a consideration which influences the committee. If the bill is passed, there will be provision in the bill to enable IBAC in a public sitting to at any stage go into a private sitting if there is evidence that it is likely to damage individual reputations. That is a powerful additional tool which is being proposed, which I would entirely support and which it appears would go a long way towards affecting the only rationale I can see for why one would want to deter an institution like IBAC from having public hearings. We have had very few public hearings, and one of the criticisms that is made of IBAC is that it has not really discharged its function in terms of public hearings. Particularly if we can ensure that we are able to protect reputations, we would like to see the act amended to remove the restrictions of it being exceptional circumstance. So the actual request by the Commissioner is what the opposition has been looking at, and that is why we have circulated an amendment to remove this restrictive part of the Independent Broad-based Anti-corruption Commission Act 2011 through the oversight bill that we are looking at at the moment. They are pretty powerful comments coming from the IBAC Commissioner himself, that he wants the freedom to be able to choose when he holds public hearings without the restriction being placed on him. It was interesting to read an article the other week by a good friend of mine, John Pesutto, who was the shadow Attorney-General and who wrote on this particular issue. I am not sure whether he knew the bill was coming up, so it is a matter of good coincidence. This is what he said in an article in the Age on 2 February, and I am sure it has been read by many people: Sensibly, the IBAC regime under current law permits public examinations only in certain circumstances. There have to be exceptional circumstances, it must be in the public interest to hold a public examination, and IBAC must be satisfied that any public examination will not unreasonably damage a person’s reputation, safety or wellbeing. That was referred to by the Commissioner—that if you were halfway through a public hearing and all of a sudden the Commissioner realises there could be damage to the reputation of a witness or a person who has been involved in that, you could stop the public hearing and then go into a private hearing. Mr Pesutto went on to say that: It suggests that the legislative policy of promoting the judicious use of public hearings is working … … Compared with other jurisdictions, Victoria has done well on this. The Independent Commission Against Corruption in NSW has during roughly the same period conducted over twice as many public hearings to the point where they seem to be standard— rather than exceptional circumstances. According to John Pesutto: On public hearings, Victoria strikes a more reasonable balance. But he goes on to warn: Once the bill passes, in addition to the existing requirements IBAC must already meet before it can conduct any public examination, it will need to consider on reasonable grounds whether the conduct is serious or systemic corrupt conduct or serious or systemic police personnel misconduct. … The risk is that the bill’s changes to the threshold for public examinations could reduce the small number of public examinations we tend to see now. They are very important points made by the former shadow Attorney-General. Just one other point that I want to cover that he covers when referring to public hearings is that: Used wisely and carefully, public examinations are too important an instrument of normative behaviour for them to be wound back, especially when there is no evidence the modest number to date constitutes overuse. The bill also merges a couple of the committees, and this was highlighted in the last Parliament. The committee that I chaired, the Independent Broad-based Anti-corruption Commission Committee, as I said earlier, was made up of members from the Greens, the National Party, the Liberal Party and Labor. Obviously it was an excellent committee. It was interesting that debate was not along party lines. The member for Gippsland South and the member for Mordialloc were part of that committee. It was not along party lines; it was actually based on the policy, based on the evidence and based on the facts that we were able to put forward. It was an excellent committee. This bill before us actually draws on three reports that the committee did. Part of the bill is the establishment, through the Parliamentary Committees Act 2003, of an Integrity and Oversight Committee. What it will do is abolish the IBAC Committee and the previous oversight committee that was chaired by the member for Forest Hill. The purpose of the amendment is that the government considers that parliamentary oversight of Victoria’s integrity and oversight bodies is fragmented, with the responsibility distributed across the IBAC Committee, the Accountability and Oversight Committee and the Public Accounts and Estimates Committee (PAEC). The bill merges the IBAC Committee and the Accountability and Oversight Committee and renames them the Integrity and Oversight Committee. It will have the same functions performed by the former IBAC Committee and the Accountability and Oversight Committee as well as some new functions. The government believes, and we are not opposing this part of the bill, obviously, that it will create a specialist committee with expertise on IBAC, the Ombudsman, the information commissioner and the Victorian Inspectorate (VI), which will allow the committee to bring a more holistic approach to oversight of the integrity system. It will create clear lines of accountability to Parliament, allow for more efficient parliamentary oversight and help to avoid double handling of matters and fragmentation of oversight responsibilities. I do not believe that with the two committees there was that double handling, but the view of the government is slightly different. PAEC will continue to oversee the Victorian Auditor-General, and we have no issues with that. The key amendment in this bill is to make amendments to the Parliamentary Committees Act 2003 to establish a new Integrity and Oversight Committee. Under this bill I note that under new section 31B the Integrity and Oversight Committee must assess a disclosure about the VI to determine whether or not the disclosure is a public interest disclosure complaint. If the committee determines that it is a public interest complaint, it must engage an independent person to investigate it, taking into account the minister’s recommendations for an investigator—and I have no problem with that; I think it is straightforward. In short, it puts the new committee in the shoes of IBAC and becomes a clearing house for disclosures about the VI with respect to disclosures about the VI or a VI officer. The committee—and this is all new—will receive disclosures either directly or via a Presiding Officer of the Parliament, so the Speaker or the President of the Legislative Council can refer a matter to the new committee, which assesses the disclosures and engages an independent person to investigate public interest disclosure matters. o the committee will have more work to do in addition to what the IBAC Committee and the Accountability and Oversight Committee are doing now. You are merging the two, as well as giving it more work in regard to public interest disclosures in regard to the Victorian Inspectorate and VI workers. The committee will also appoint an independent performance auditor to conduct a performance audit of the Ombudsman, IBAC and the Victorian Inspectorate at least every four years. This will line up with the parliamentary terms. Parliament will appoint, on the recommendation of the Integrity and Oversight Committee, an independent performance auditor to conduct a performance audit of IBAC, the VI and the Victorian Ombudsman at least every four years. Provisions commence on 1 July 2020, so we are able to get that set up. The Integrity and Oversight Committee produces specifications of the performance audit. The committee will also consider the Ombudsman’s, IBAC’s and the Victorian Inspectorate’s budget and annual plan, and this is a step towards one of the recommendations that was put forward by the IBAC Committee to give greater independence to the integrity bodies to be able to put forward their own budget instead of them being given a lump sum from the government. There needs to be greater independence. That is the way the Victorian Auditor-General’s Office works, and that is the way it is going to work under this new legislation. The bill also makes a number of important changes in regard to protected disclosures. We spent months and months and months working on the issues of protected disclosures—or as they were called in the old days, whistleblowers. The term 'whistleblowers’ seemed to have a negative connotation around it, so they moved to 'protected disclosures’. Now it has changed again to 'public interest disclosures’, PID, arguing that the terminology is best practice and will fall in line with what is used in other states. However, the IBAC Committee found that experts and those working in the field, whilst recognising that most states use the term PID, found that the general public had no understanding of the term, and they are recommending the term be changed to 'whistleblower disclosure’. If you went out to people in the street and asked what a public protected disclosure or public interest disclosure is, no-one would have a clue, but as soon as you mention the word 'whistleblower’ of course people understand what it means. There was conflicting evidence given to the committee. I remember one meeting in London where the barristers that were briefing us were very keen for the word 'whistleblower’ because it is understandable and they believe that the negativity around it has changed over the years and it is not as negative as it was in the past. As I said earlier, the new body will be able to assess and arrange investigation of public interest disclosures about the VI, the new committee can consider and investigate complaints about the office of the freedom of information commissioner and the new committee also has a role in relation to the budgets and performance audits of IBAC, VI and the Ombudsman. The only changes that we have been assured of between the bill that was introduced in the last term and this bill are the commencement dates, and that makes perfect sense. The provisions establishing the Integrity and Oversight Committee will commence the day after royal assent instead of 1 January 2019. The majority of the bill will commence on 1 January 2020 instead of 1 January 2019. The budget independence provisions will still commence on 1 July 2020. It is interesting to note as you work through this bill the number of recommendations that have been accepted by the government on the work done by the IBAC Committee. As I said, there were three reports that the IBAC Committee did over the term of the last government. Those were Strengthening Victoria’s Key Anti-Corruption Agencies? in February 2016, shortened to the strengthening report; Improving Victoria’s Whistleblowing Regime: A Review of the Protected Disclosure Act 2012, better known as the PD report; and A Framework for Monitoring the Performance of the Independent Broad-Based Anti-Corruption Commission, better known as the framework report. That was an important report because it is difficult to be able to assess the work of an anti-corruption body. How do you set KPIs? How do you set the framework around performance? Is it the number of investigations that are completed in a 12-month period? Is it the number of investigations that are started over a term of four years? It is very difficult. But I believe that the framework report that was tabled in Parliament by the IBAC Committee strikes the right balance. We did a lot of work with the IBAC Commissioner and his staff, and we believe that that strikes the right balance. As I said, we have moved the amendment, so we will be supporting the amendment, and we are hoping that the government looks at our amendment because of our concerns about the restriction of the IBAC Commissioner. The IBAC Commissioner himself has raised concerns about the restriction on holding public hearings. We hope that the government accepts our amendment, and if it does not in this place, then between the two houses we would call on the government to look at that amendment and make the right decision to make this a better bill.