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PUBLIC INTEREST MONITOR BILL 2011 Second reading

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Debate resumed from earlier this day; motion of Mr McINTOSH (Minister responsible for the establishment of an anti-corruption commission). Mr BATTIN (Gembrook) — I rise to support the Public Interest Monitor Bill 2011. The main purpose of this bill is to establish a principal public interest monitor and deputy public interest monitors, to confer functions on those public interest monitors under the Major Crime (Investigative Powers) Act 2004, the Surveillance Devices Act 1999, the Telecommunications (Interceptions) (State Provisions) Act 1988 and the Terrorism (Community Protection) Act 2003.
The government understands that the community wants to ensure the protection of its rights if any agency wishes to use coercive powers. The incorrect use of coercive powers is a major breach of a person’s rights. Everyone in Victoria must feel that they are protected. Should these powers be used, we must ensure that it is in the interests of public safety.
The Baillieu government is committed to protecting the rights of Victorians with this bill, and we support its introduction by the Minister responsible for the establishment of an anticorruption commission. The bill has been introduced to safeguard applications for coercive powers, surveillance powers, retrieval warrants, assistance orders, approval of emergency authorisations, covert search warrants, preventative detention orders, prohibited contract orders and any extension, variation, renewal or revocation of an order, warrant or approval referred to above.
The Public Interest Monitor will be present at any hearing of the above and will represent the Victorian community in these hearings and play a major role in ensuring that all warrants and orders protect the public interest. When the bill comes into effect the first public interest monitor will need to be appointed, and the Governor in Council will be responsible for that. The Governor in Council will be able to appoint one or more persons, who must be of very high integrity, as deputy public interest monitors. In addition they must not have been appointed under the Public Prosecutions Act 1994 or employed in or seconded to the Office of Public Prosecutions.
Something that has come out of the debate today is seven separate amendments that have been circulated by the member for Altona. The coalition will not be supporting them.
The bill provides for an appropriate level of independence in order for public interest monitors to carry out their very important functions. A public interest monitor will be appointed by the Governor in Council for a fixed term and can only be removed by the Governor in Council if he or she forms the view that the public interest monitor is unfit to hold that office. The public interest monitors are subject to the Public Administration Act 2004 and are required to avoid any conflict of interest, and it is very important to ensure that any person holding such office avoids any conflict of interest. We want to ensure that all people in those positions are held to account in relation to the public interest.
Under the bill the principal public interest monitor is required to provide an annual report that will include a summary of the performance of the functions of the public interest monitors and statistics about applications Page 5241 made, withdrawn or refused. The annual report must be tabled in Parliament by the minister within 14 sitting days. The process that will be implemented by the bill is the same process that exists for the commissioner for law enforcement data security, the child safety commissioner, the privacy commissioner and the public sector standards commissioner. All these commissioners were created by the former government.
Mr Foley — What about the SIM?
Mr BATTIN — They are all positions that were created by the former government. It was okay then, but now they are in opposition they want to change it.
The ACTING SPEAKER (Mr Weller) — Order! The member for Albert Park will get his turn.
Mr BATTIN — As I said, we cannot support the opposition’s amendments. Currently the only people who report directly to Parliament are parliamentary officers such as the Ombudsman, the Auditor-General, the director, police integrity and the special investigations monitor (SIM). This is the same system as applies currently in Queensland where the Public Interest Monitor also reports to the relevant minister who then reports to the Parliament. This bill is based on the Queensland system, which works effectively up there. The proposed amendments seek to alter the process to allow the principal public interest monitor to table the annual report directly to Parliament, which is something that does not happen in Queensland or anywhere else, and it is something we will not be supporting here in Victoria. We want to ensure there is integrity, and we believe the bill will be in the best interests of the public.
The bill is supported by many organisations, and we have heard much about what we have been doing in relation to consultation.
I refer to a few of the letters which support the bill. The Law Institute of Victoria wrote to the minister on 13 October. Its letter states:
It is our strong view that the use of such intrusive powers should be subject to the highest levels of scrutiny, and the introduction of the Public Interest Monitor will go some way towards ensuring that these powers are only utilised when absolutely necessary — —
and of course most importantly —
and in the public interest.
We also had a letter from the International Commission of Jurists in Victoria. That organisation wrote to the minister on 14 October commending him for what he is doing. The letter states:
We commend the government and urge you to continue the effort to defend and reinforce accountability and transparency generally in government.
The bill will protect the public interest. It will ensure that the public has someone who is standing up on its behalf. We have seen many applications for the use of coercive powers, including telecommunications interceptions, and none of them have been knocked back. It is important that someone representing the public has an opportunity to oversee that and to make sure that the system protects people’s rights, because we are doing here something which, I suppose, is going against their privacy. However, if it is a law which will prevent crime, we are always going to support it.
The Public Interest Monitor will be in place for the purpose of attesting to the content and sufficiency of the information relied on and the circumstances of an application, to ask questions of any person giving information in relation to the application and to make submissions on the appropriateness of the granting of the application and any other function conferred on a public interest monitor under the act of law. This will make sure we protect the interests of the Victorian community. The Public Interest Monitor will be a voice for the community in any hearings.
The bill’s explanatory memorandum states:
Clause 16 provides in subclause (1) that a public interest monitor must avoid any actual or potential conflict of interest with his or her role as a public interest monitor.
Again, this will ensure the position has the appropriate level of scrutiny, which is as it should be when someone is talking about coercive powers and phone interceptions. The memorandum continues:
Subclause (2) provides that a public interest monitor who believes that he or she has an actual or potential conflict of interest in relation to a matter may declare that he or she is unable to perform the functions of a public interest monitor in relation to that matter.
In closing, I support the bill, but I definitely do not support the amendments that have been put forward. There is currently a Public Interest Monitor in Queensland that reports to the minister. It is a system that has been proved to work, and it is a system that we will see work in Victoria. I commend the bill to the house and wish it a speedy passage. Mr FOLEY (Albert Park) — It gives me great pleasure to rise to make a few brief comments in relation to the Public Interest Monitor Bill 2011. As has been established by the opposition’s lead speaker, the member for Altona, while the opposition will not be opposing the bill, in accordance with the finest
Page 5242 traditions of the Westminster system we will be seeking to hold the government to account in relation to the standards that it has set itself. When it was in opposition the current government said it would be the most virtuous organisation around when it was entrusted with the Treasury benches, which it now occupies. But instead of meeting those high standards, as we have seen in more recent times, what we are seeing increasingly is this shallow, vacuous, hollow and leaderless mob of sheep essentially abandoning this high moral ground by its own actions.
If this Public Interest Monitor (PIM) is to have any legitimacy in the eyes of the Victorian people in how it goes about its operations, it needs not to convince the members of the Treasury benches but the punters out there in the electorates that we all have the privilege of representing. Those opposite need to make sure they maintain the public interest they speak so glowingly of the PIM protecting.
In dealing with the issues of integrity in government and the establishment of the IBAC (Independent Broad-based Anti-corruption Commission), through this bill they must make sure the Public Interest Monitor is there as the guardian of that public interest.
As we have seen in more recent times — and as highlighted in the OPI (Office of Police Integrity) report Crossing the Line, which was an investigation into certain activities of members of Victoria Police and senior officials within this government — there are plenty of things to uphold in the public interest. There is due cause for this mob opposite on the form that is described in this report to provide that protection.
That is why the member for Altona has circulated the amendments that the opposition will be supporting.
As we have heard from the member for Gembrook, there are plenty of precedents in relation to reporting being taken away from the hands of ministers and government officers so that bodies can report directly to Parliament. I was particularly pleased to hear him acknowledge in his contribution a particular example involving the special investigations monitor (SIM). It is not much of a leap to see that the Public Interest Monitor and the SIM — it is the PIM versus the SIM! — are directly related in terms of how these oversight bodies go about pursuing important tasks that they are charged with. If is good enough for the SIM, why then is it not good enough for the PIM? Is it because this bill seeks to be a modest initial contribution, because there is much to be modest about when it comes to this bill? There is much to be modest about in terms of this government being held to account. The PIM seems to be the first contribution to the oversight of public organisations, including law enforcement and review organisations, so that the sorts of activities described in the OPI’s Crossing the Line report are protected.
We need to make sure those anticorruption bodies are given full opportunities to hold this government up to its own standards that it seeks. It has miserably failed in terms of these standards, as has been set out in the OPI report Crossing the Line. That is why this opposition will be supporting an amendment to ensure that the government is held up against its rhetorical position that it had so enthusiastically espoused when it was in opposition.
The essence of the proposed amendments is to ensure that the PIM can without fear or favour report directly to the Parliament and not through the tangled web of the minister’s officers that were described by the OPI as seeking to undermine those who would not do the government’s bidding, or those who were described as ‘vacuous toads’ by senior officials of this government, as reported in the OPI report, and whose job it is to uphold public order and public standards.
This government has placed emphasis on the new, anticorruption framework and the particular responsibilities of the Minister responsible for the establishment of an anticorruption commission. These same people had no compunction whatsoever in seeking to interview the former deputy commissioner of police, Sir Ken James, in relation to a possible position on IBAC — —
Ms Ryall — Back on the bill.
Mr FOLEY — Of course it is on the bill. Anything that is about how public interest is maintained in this state under this government’s legislation and public policy, which has been reflected in the behaviour of the government to date, is directly related to this bill.
What has been reported in this OPI report, and it will be the framework under which the Public Interest Monitor will be operating, is the oversight of those roles and important powers with which this Parliament and other parliaments around the country have charged law enforcement and anticorruption bodies. They will need
every assistance they can get to counter the interference of this government, something which has been laid out in very stark detail in the OPI report.
This Minister for Police and Emergency Services, this police portfolio, police organisations and anticorruption bodies have significant powers when dealing with current moves in relation to anticorruption measures. If we ever see the full contribution of this government’s framework in relation to IBAC, then the PIM will have Page 5243 particular responsibilities in terms of holding this government to account. We have seen the Deputy Premier’s own office up to its eyeballs when seeking to undermine the law enforcement officials of this state who sought to apply these standards.
It is disappointing in the extreme that a number of members who are represented on the government benches were police officers in their previous occupations. I stand to be corrected, but I am pretty sure the member for Gembrook was a police officer. To have him infer somehow or another that Victoria Police needed the Public Interest Monitor to take an extra look over its shoulder, I would have thought, is getting pretty close to the wind in relation to how he would see his former workmates in that area.
What we have to see in this state is not just a rhetorical contribution to a framework of public accountability and decency in relation to public life.
We have to see a commitment to it from members opposite; we have to see their rhetorical position delivered in reality. This PIM bill will not be opposed by the opposition. The government has promised that the PIM will, somehow or other, be a central guardian of public interest and of a wider interest in terms of the oversight of a range of anticorruption measures, but given the form of the government the people of Victoria will have little confidence in how that will be applied, particularly when the gory details have been laid bare to the world in the OPI’s Crossing the Line report. Those opposite have form when running covert and secret operations from within the heart of the office of the Deputy Premier, who is the Minister for Police and Emergency Services. He sought to undermine the former Chief Commissioner of Police and the deputy and assistant commissioners of police using the most odious terms and the most cynical arrangements — —
Mr O’Brien — On a point of order, Speaker, the government has extended a fair bit of latitude even though the member for Albert Park is not the lead speaker on this bill, but in my submission he is now well out of order and I would ask that he be brought back to the bill.
Mr FOLEY — On the point of order, Speaker — and I note that the clock is running down whilst I make the point of order — if the minister at the table takes offence, as apparently he does, with his glass jaw, to many issues, this issue of the PIM deals directly with oversight responsibilities for phone tapping. The most recent example of how this government has dealt with this matter is laid bare in a report to this Parliament about one of the very bodies it is proposed to oversight, or its successor, the OPI. So I say that contributing on the OPI report is directly relevant to the issue.
The SPEAKER — Order! The member’s time has expired. Mrs FYFFE (Evelyn) — I am pleased to rise to speak on the Public Interest Monitor Bill 2011. This bill is an important part of the legislation that is in front of the house this week, along with the Victorian Inspectorate Bill 2011 and the Independent Broad-based Anti-corruption Commission Bill 2011, to set up the framework for the oversighting of the IBAC. We have consulted, we have listened and we are ensuring that the legislation is correct and that it gives Victorians confidence that this government will honour its commitments to openness and integrity.
All members in this house will remember how the Office of Police Integrity legislation came in under the previous government. This government brings in legislation differently. We will bring in the necessary and correct legislation to the government’s timetable, not to that of the opposition. We are doing what we promised in measured and well thought out steps. We have taken advice and we have listened.
This bill is serious, sombre legislation, as are the two bills to be debated on Thursday. This minister is not into bells and whistles, hard hats and photo shoots. He is not into bringing in legislation that is not well planned and researched and for which professional advice has not been sought.
The consultation on this bill has been wide. It was under an extensive consultation panel led by the Honourable Stephen Charles, assisted by His Honour Gordon Lewis, AM, Peter Harmsworth, AO, and Gail
Owen, OAM, who are very highly respected members of the community. The implementation of a Public Interest Monitor for Victoria was recommended as part of the submission of the Federation of Community Legal Centres Victoria, which said on page 4 of its submission:
We also recommend that the panel consider an additional layer of oversight by introducing a public interest monitor for Victoria.
The International Commission of Jurists in Victoria has written saying it supports the introduction of a Public Interest Monitor, as has the Law Institute of Victoria, which has said that it also welcomes the government’s decision to introduce a Public Interest Monitor to act in the public interest in applications for covert and special investigative warrants. Page 5244 I do not support the amendments brought in by the member for Altona. The bill provides for the appropriate level of independence for public interest monitors, or PIMs, to carry out their important functions. For example, the public interest monitors are appointed by the Governor in Council for a fixed term and they can only be removed from office if the Governor in Council forms a view that they are unfit to hold office. PIMs are not subject to the Public Administration Act 2004, and PIMs are required to avoid any conflicts of interest. The principal public interest monitor is required under the bill to provide an annual report that will include a summary of the performance of the functions of public interest monitors and statistics about applications made, withdrawn and refused. Under this bill the annual report must be tabled in Parliament by the minister within 14 sitting days of receiving it, and the process under the bill is the same process that exists for the commissioner for law enforcement data security, the child safety commissioner, the privacy commissioner and the public sector standards commissioner.
The proposed amendment by the member for Altona seeks to alter this process.
We have given the opposition plenty of opportunities for briefings. The bill was read on 25 October, and the member for Altona attended a briefing on 28 October. The member for Altona also attended a briefing on the IBAC and inspectorate bills on Monday, 31 October, with the second reading on these bills having occurred only on Thursday, 27 October. These briefings were open to all opposition members to attend, and the government will continue to ensure that briefings on government bills occur in accordance with the usual practice.
The Public Interest Monitor Bill 2011 is an important step in the role of the government’s new integrity reforms, and it provides an extra level of oversight and additional checks and balances on the significant powers available to bodies such as the Office of Police Integrity, Victoria Police, the chief examiner and other government agencies with the power to apply for warrants.
PIMs will also oversee the investigative powers to be bestowed on the Independent Broad-based Anti-corruption Commission.
I am very conscious that other speakers are wanting to make a contribution on this bill, so I will not go through all of the clauses in the time that has been allotted to me, except to say that I strongly support this bill. I strongly support the legislation being brought in by the minister, and I wish the bill a speedy passage through the house. Mr CARBINES (Ivanhoe) — I am pleased to make a contribution on the Public Interest Monitor Bill 2011. The Labor Party is not opposing the bill, but it is seeking amendments and the government’s support for those, particularly in relation to clause 20. Who watches the watchers? The accountability of governments, of ministers, of public sector officials and so on has consumed much political debating time among Victorians in the past few years.
The State Services Authority, the Office of Police Integrity (OPI), the Ombudsman and a cottage industry of commissioners to oversight everything from the sacrosanct rights of children to the operation of speed cameras are now in place. We now have before us a bill that looks particularly at telecommunications interceptions, or phone tapping, as it is known. This has led to the bill before the house with regard to the Public Interest Monitor.
I point out that in particular in the second-reading speech the minister pointed to the need to provide important checks and balances on the use of significant covert investigative and coercive powers in Victoria. There was of course the recent report of the Victorian Ombudsman on an investigation into the Office of Police Integrity’s handling of a complaint, where it was pointed out by the Ombudsman that there appeared to be a
considerable gap in the oversight arrangements in relation to the use of telecommunication interception powers in Victoria.
My observations are that in their desire to meet community expectations about openness, accountability and the appropriate use of powers bestowed by the Parliament, governments — the elected representatives of the people — have not always kept pace with ensuring that the great privileges made available to these non-elected appointees are also open to scrutiny, checks and balances.
The Victorian Ombudsman is right to insist that we have a Public Interest Monitor, and I note that the Liberal-Nationals government has stuck doggedly to an opportunity to put itself ahead of the interests of Victorians. It has chosen to do that in relation to clause 20 of the bill, which sets out the process by which the minister must lay annual reports before each house of the Parliament:
(1) The Minister must cause the report to be laid before each House of the Parliament within 14 sitting days of the House after receiving the report.
That could easily blow out to two months before the report of the Public Interest Monitor is laid before this house and before the public. The government has not adequately explained why the minister requires some two months to look privately and exclusively at the Page 5245 annual report of the Public Interest Monitor before making that report available to other members of this house, to other members of this Parliament and to the people of Victoria. What is the motivation behind that? All we have to go on is an Australian Associated Press report of 13 October headed ‘Minister bungles on Vic phone tap watchdog’, which reads:
The Victorian government has backtracked on claims it would directly brief the new phone bugging and surveillance watchdog.
Perhaps this explains why the minister is keen in another forum to try to make sure that under clause 20 of the bill he has exclusive rights and access for as long as possible to the annual report that is meant to be tabled in this house. At the time — on 13 October — the minister told reporters that it would be the state government and probably himself who would be briefing the Public Interest Monitor. He is quoted as having said:
‘It will probably be, no doubt, the minister responsible for the establishment of the anticorruption commission or it may be the department’, he told reporters.
‘But the reality is, you know, it will be the government that will do the briefing of the person to appear on behalf of the public interest’.
The minister later backtracked in relation to this matter, but he sought through the provisions of clause 20 of the bill before the house to provide himself with every opportunity and every length of time to have exclusive access to the report of the Public Interest Monitor, which should be made available to the members of this Parliament and to the public. No reason has been given by the minister for why he needs to have unfettered and exclusive access, before other Victorians, to the findings of the annual report of the Public Interest Monitor.
One can only conclude that the original comments he made to the media and publicly in relation to who would be briefing the Public Interest Monitor and who would be directing the Public Interest Monitor — comments which he later backtracked on and later recanted — must stand.
The minister has sought to get around that by providing himself with not just 14 days, not just 10 to 15 business days, but 14 sitting days. If the report is presented in a month where there are no sitting days or in a month where there are three sitting days and there are six in the next month, it could be two to three months before the annual report of the Public Interest Monitor is delivered to the Parliament. I think that is of great concern, and it is something the Labor Party has sought to amend. We look forward to hearing from the government as to why it believes the minister needs to have unfettered, exclusive access to what is ultimately a public report. No explanation has been given.
I believe the work that the governments of both persuasions have done in relation to openness, accountability and transparency — and accountability in particular — is important to ensure that those people who are entrusted with representing public utilities and public authorities are accountable and are meeting the obligations placed upon them as unelected representatives asked to discharge public responsibilities. Often
governments have not apprised themselves of the checks and balances in place in those organisations, but in an effort to try to do that through the Public Interest Monitor — —
The DEPUTY SPEAKER — Order! The time has come for me to interrupt the business of the house. The member will have the call when the bill is next before the house.
Business interrupted pursuant to sessional orders.

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