Hansard debates

Anthony MARSH (Nepean) (15:48): The establishment of a special prosecutor to assist the Royal Commission into the Integrity of Major Public and Civil Infrastructure Construction Projects in Victoria is important because people involved in corrupting $15 billion of taxpayer money should go to jail. There should be an office that can work independently with the commission, receive material from it and ensure relevant information can be provided to Victoria Police, IBAC, regulators and other bodies capable of taking further action. This bill provides that the special prosecutor is not subject to any direction of Premier Carroll or any other ministers in the performance of their functions. It establishes information-sharing arrangements, confidentiality obligations and an offence for unauthorised disclosure.

But the title the government has chosen disguises an extraordinary limitation of Labor’s bill. It establishes an office called the special prosecutor but the bill confers no prosecutorial powers on that office. It does not confer any power to commence or conduct criminal prosecution. Instead, proposed section 52K(2) gives the special prosecutor the function of working with the commission to provide relevant information to Victoria Police, IBAC, regulators and other bodies so that entities can consider whether to take action. Labor is asking this Parliament to create a special prosecutor without giving the special prosecutor the power to prosecute. Even the government’s own announcement concedes that the office will only be equipped with additional powers next year.

The government is legislating the title now but promising action later. Victorians were promised an office that would ensure wrongdoing uncovered by the royal commission is acted on, but what this bill actually creates today is an administrative information-sharing mechanism and an office carrying a prosecutorial title.

But perhaps the most important issue in this debate is what the bill leaves untouched. Clause 4 creates new powers for a royal commission to compel a person by written notice to provide written information or a written statement. The government says in the very purpose of the bill that this is strengthening a royal commission’s power to require information. However, section 18 of the Inquiries Act 2014 still provides that public interest immunity can be a reasonable excuse for refusing to comply with a royal commission notice. Public interest according to whom? The same politicians subject to a potential investigation?

The government is creating a new information-gathering power that cannot prosecute while leaving in place a statutory barrier that a Victorian royal commission told it to remove almost six years ago, one that Labor has promised to remove but never has. The issue was examined exhaustively by the Royal Commission into the Management of Police Informants. Its final report records that Victoria Police and other law enforcement agencies made thousands of public interest immunity claims. The commission concluded that the operation of the PII under the Inquiries Act seriously hindered its work and had a detrimental impact on its ability to inquire into matters that were relevant to its terms of reference. The commission therefore made recommendation 91, and I suggest that members opposite reread it. It recommended that the Victorian government amend the Inquiries Act within 18 months to remove the ability to refuse to provide information to a royal commission on the basis of public interest immunity. That time expired on 31 May 2022. The Labor government knew exactly what was required. It said it was on track to introduce amendments into the Parliament by that time, being 31 May 2022, but unsurprisingly it missed its own deadline. By the end of 2022 the government was still saying it would continue to pursue amendments to the Inquiries Act. Those amendments, again, did not come. Rather than implement recommendation 91 through the legislation the commission expressly called for, the government moved towards whole-of-government administrative guidance on public interest immunity claims.

Bureaucratic guidance cannot repeal a section of the legislation, it cannot remove a statutory reasonable excuse and it cannot deliver the legislative reform that the royal commission recommended and the Labor government itself said it was on track to introduce. That failure matters more than ever because Victoria has another royal commission, and this bill’s stated purpose includes strengthening information-gathering powers. It is not enough to create an independent special prosecutor which, again, cannot prosecute if the commission can still be denied material by reliance on a statutory public interest immunity excuse. Independence after evidence is obtained is valuable, but the question today is whether that evidence can be obtained at all. That is why the coalition is moving its amendment. Where clause 4 expands the royal commission’s powers to compel information, we seek to remove public interest immunity as an excuse for refusing or failing to comply with a royal commission requirement, including by repealing section 18(2)(c) and making the necessary consequential changes.

A royal commission cannot investigate what it cannot see. It cannot uncover what is being wilfully hidden behind Crown privilege. Nobody is suggesting that sensitive information should be simply thrown into the public domain. That is not what recommendation 91 required, and it is not what our amendment seeks to do. The recommendation and our amendment are directed at removing public interest immunity as a basis for refusing to give information, answer a question or produce a document to a royal commission. Crown privilege should not be allowed to become a brick wall between a royal commission and the evidence it has been established to examine. That is particularly important in the context of the construction royal commission, where the conduct and decisions of this Labor government itself will be under scrutiny. If the inquiry reaches briefings, communications or decisions that are politically damaging, the Labor government should not be able to seek refuge behind a statutory public interest immunity claim to keep relevant material from the commission. The whole purpose of the royal commission is to follow the evidence wherever it may lead, including to ministers, departments, agencies and cabinet itself. By leaving section 18(2)(c) untouched the Labor government is preserving a mechanism that could be used to frustrate any scrutiny of itself.

After failing for years to implement recommendation 91, it is entirely reasonable to ask why it still wants that protection available now. I think everyone in this house and in the community knows why: the government cannot credibly establish a royal commission in the 11th hour, bring forward legislation to strengthen its coercive powers, create a special prosecutor who cannot prosecute, act on the information it uncovers and at the same time preserve a mechanism capable of preventing the commission from obtaining the required evidence in the first place.

The amendment is years overdue. Recommendation 91 was made in 2020; the Premier was at the cabinet table. Perhaps he does not recall, and given the public interest immunity provisions that they are fighting for, we may never know. Recommendation 91’s implementation deadline expired in 2022. The Labor government publicly said it was on track to legislate but then missed its own deadline. Now, in 2026, it brings a bill expressly designed to strengthen the royal commission’s information-gathering powers but leaves section 18(2)(c) untouched. The coalition supports a special prosecutor that is genuinely capable of assisting the construction royal commission. We support the flow of relevant information from the commission to enforcement and integrity agencies. We support proper confidentiality protections and genuine operational independence, but those mechanisms only have value if they can get to the evidence in the first place.

Labor have had nearly six years to implement recommendation 91, and it has been more than four years since the deadline set by the commission and that they agreed to themselves. It should not take an opposition amendment six years later to finish the work that this Labor government told Victorians it would do and was on track to do in 2022. If the Labor government is serious about a royal commission with real powers, it should support our amendment, remove the statutory public interest immunity barrier, give the commission access to the materials it needs and allow the inquiry to follow the evidence without fear or favour. That is the reform the royal commission recommended but is a reform Labor has failed to deliver. It is a mechanism that they now want to preserve so this corrupt Labor government can use its powers to cover up its own conduct. This Parliament should now finish the job, abolish the public interest immunity excuse and allow the commission to do the work the Victorian community expects us to do. To do otherwise would be an utter disgrace, but we all know integrity remains optional under this Premier and this Labor government.