2016-02-10
Mr BARBER (Northern Metropolitan) — I move:
That, further to the resolution of the Legislative Council on 25 November 2015 referring a matter to the Ombudsman for investigation pursuant to section 16 of the Ombudsman Act 1973, this house —
(1) notes that the Ombudsman has made an application to the Supreme Court of Victoria pursuant to section 27 of the Ombudsman Act 1973 seeking a determination as to her jurisdiction to investigate the matter referred to her by the Legislative Council;
(2) affirms the Ombudsman's jurisdiction and power under section 16 of the Ombudsman Act 1973 to investigate the matter referred to her by the Legislative Council;
(3) directs the President to —
(a) make application to the Supreme Court for the Legislative Council of Victoria to be joined as a party to the section 27 proceedings in order to contend in those proceedings that the view set out in (2) is correct;
(b) act as the Legislative Council's representative in such proceedings in any manner he deems appropriate and in accordance with any direction from the house;
(c) for the purposes of (3)(b) this may include, but is not limited to —
(i) seeking legal advice;
(ii) engaging counsel; and
(iii) making submissions.
This motion seeks to direct the President to make application to the Supreme Court to defend the original motion of the Legislative Council, which directed the Ombudsman, under section 16, to investigate an allegation we have all been reading about in the newspapers that Labor members in this place misused their staffing entitlements by providing staff members to work on the ALP's re-election campaign.
I am extremely disappointed that we are here moving this motion and seeking to go to court to defend our original position, because I made no judgement with my original motion — no presumption of guilt against the Labor Party on this matter. I do not believe I have publicly stated that I believe the allegations are necessarily true or false, but I have maintained the entire time that if unresolved, these allegations threaten to bring all members of the house into disrepute.
While Labor finds itself incapable of effectively initiating an investigation into itself, it is nevertheless the responsibility of Parliament to investigate a possible misuse of entitlements by its members. That was in fact a long-running discussion of the last Parliament in relation to a former Liberal MP in the Legislative Assembly, Mr Shaw. The Ombudsman investigated him and found that he had misused his entitlements, and the Privileges Committee later decided to affirm that finding and to also make a finding in relation to what remedy Mr Shaw should face.
I am even more convinced than I was when I moved the original motion that section 16 of the act provides for the Parliament to refer 'any matter', which is the term used in the section, for investigation by the Ombudsman. Labor has got a different argument. Labor says that other sections of the act override section 16. It is interesting because if members look at those other sections that provide other heads of power for the Ombudsman, they will see that some of those sections have been tweaked, changed and in some ways limited with recent changes to the Ombudsman Act, largely as a result, I believe, of the introduction of new integrity bodies, such as IBAC and so forth.
But in fact with all those various amendments, section 16 has remained intact and unmodified over, as far as I am aware, most of the life of this act. So it is pretty clear to me that if there was an intention at any stage to further limit the Parliament's power to refer to the Ombudsman any matter for investigation it would have been done during those amendments. But that is a matter for the courts now to determine.
The government's public utterance was that it would not resist any investigation that was established. The government was a bit too cute with the wording there, because clearly it intended at all times to fight tooth and nail to prevent the investigation from being established. That would be done under the shield of the argument members are about to hear in a minute, which is that the Ombudsman does not have any jurisdiction and it is a terrible travesty that the Parliament has asked her to investigate this matter. Well, that is a matter that is going to be argued out in court. However, the question for the Parliament today is: will the Parliament, through the person of the President, be represented in that court hearing. All members would have received a letter from the Ombudsman, including attached to it her court filings, where she says that she will seek a declaration from the court as to the jurisdiction, but that she will remain neutral on the question.
It is going to be difficult to seek a declaration from the court and at the same time remain neutral. It is for that reason that I think the Parliament ought to be represented in the case, not to remain neutral but to in fact assert that our reading of the act, when we moved this motion back before Christmas, was correct. It is important that we maintain the tool and the capacity that section 16 provides to the Parliament. Parliament is engaged in many investigations into matters of public policy and sometimes even into matters of integrity relating to its own members. It is certainly an efficient and transparent and, I would argue, independent mechanism to allow the Ombudsman to investigate those matters, as occurred in relation to the Windsor case — the planning approval in relation to the Hotel Windsor, which started off as a parliamentary committee inquiry. It ran into the same kind of headwinds from the government then as we face today, and it was eventually determined that the Ombudsman's investigation was the best way to get to the facts and also to have some finding as to the probity of the decision-making.
The Ombudsman is certainly well placed, as she regularly conducts investigations, has the necessary skills, necessary resources and necessary understanding to conduct a rigorous investigation that will get to the bottom of the truth. So we should not lightly toss away the ability of section 16 to instigate investigations in the way that clearly those who wrote the act intended. In fact that is one of the main reasons we are here. It is not simply to legislate, but also to investigate and better inform ourselves for when it is time to make important decisions on public policy or on the way we as a group of MPs regulate ourselves. The government's actions here are sending a very strong message that parliamentarians are incapable of enforcing the rules on themselves, although of course they are very good at launching investigations into other people. It is not only the Parliament that has been doing that but also the government as an executive has been doing it.
Those are my arguments as to why this motion should be supported. Members might like to know that I have myself already intervened in this court case. I did so because I wanted to maintain the ability of all the interested parties to participate in this action. However, I am limited in my capacity to continue funding a legal action from my own dime — literally out of my pocket — to defend what are the Parliament's powers and what I think are very important investigatory powers.
I find it very disappointing that, as the original allegation was that Labor had misused hundreds of thousands of taxpayer dollars for an improper purpose — and I have not made any judgement on whether that is true or false — it now seems that both the Parliament and the Ombudsman, and possibly even the government, will be spending hundreds of thousands of dollars more to try to hold this investigation. Well, that is certainly a waste of taxpayer funds, but Labor or the government — we are not quite sure in which capacity they are acting; it could even be the individual members who might be subject to the investigation — are doing everything they can to resist this investigation. So far they have been successful in warning off the Ombudsman.
[Speech was interrupted.]
Mr BARBER — Well, the Leader of the Government says that is not true, but the Ombudsman gave us a copy of Mr Jennings's letter where Mr Jennings argued that she had no jurisdiction. He relied on legal argument that he presented to the Ombudsman in his letter. However, she decided not to release that information. She in fact redacted it. Well, if the government chose to provide its legally privileged information to the Ombudsman, then it has already lowered the shield that would be expected to be put over, in normal circumstances, legally privileged advice. The fact that the Ombudsman chose not to release it does not mean that the shield has not been lowered. If the government is going to join the action and make a submission to the court, I look forward to reading that submission when submissions are exchanged with the parties, but at the moment — —
[Speech was interrupted.]
Mr BARBER — Yes, I understand that is the government's current position. The real question, then, is: who are the protagonists in this court hearing? But again, that will be a matter for the court to determine for itself. I do not intend to try this case on the steps of the Parliament. At the moment I am retaining my right to participate in court action, but, as I said, on a personal note it is not something I want to be doing out of my own pocket. I think I am just one member in this place, and it should be that all members, including those who might find themselves in opposition again one day, should be willing to protect and in fact fight for this very important tool that has been given to the Parliament — an investigatory tool as provided for in section 16 and as supported by the Legislative Council in a previous motion.
[Speech was interrupted.]
Mr Barber — Or individual members.
[Speech was interrupted.]
Mr BARBER (Northern Metropolitan) — Just briefly, I thank all members for their contributions and for the mostly respectful way in which they were provided to the chamber. I do not want to again present arguments around the nature of the statute itself, because this will be the second time we have argued those. But one exception I think should be mentioned to members. The Leader of the Government says that it is section 13 that overrides and therefore limits the section that the house originally relied upon. If you read all the way to the bottom of section 13AA(1), which the Leader of the Government says is the one that constrains things, you will find at paragraph (d) there is a catch-all provision that in fact says:
any other functions conferred by or under this or any other Act.
That appears to me to take you directly back to where we started from, which was section 16. But as Ms Symes said, this is now going to court. There would be little value in us spending the rest of the afternoon doing a prequel to the matters that will be argued in court.
But the argument then remains: does the Legislative Council want to be represented in that proceeding? Mr Jennings says there is nothing to argue about. Ms Symes says any role we would be playing would be nebulous. Well, I am not accepting that for a minute for two reasons. First of all, while the Ombudsman said she will maintain a neutral stance on the question, and I have not yet read her submissions to see how this neutrality will work, perhaps it is not so much neutrality as to argue both sides of the coin. As Mr Jennings seemed to argue: no reason for us to be there because the Ombudsman will do the job for both sides.
Well, that is not my view of how court proceedings operate. In my view a court proceeding by necessity needs two opposing sides who are willing to argue all the way their two opposing sides, because that is the very nature of justice. I accept that there is a provision with this act that provides the Ombudsman or another party who is being investigated with, if you like, a clear path to court, but beyond that it is still very necessary, in my view, that we have a complete and full contest of ideas.
The second thing that members should consider in deciding whether or not they want the Legislative Council to be represented is the role that the government itself might yet play in the court proceeding. The Leader of the Government says it is going to stay out of it, but during yesterday's directions hearing someone did pop up like a jack-in-the-box. It is not clear to me whether they were representing either the Australian Labor Party or the state of Victoria, or perhaps those members who may yet be subject to the investigation, and I do not have a list of who those members are. I have not seen any member actually name themself as possibly subject to an investigation. So it is a little bit presumptive and in fact it would be a little bit incautious of members to just assume that neither the Labor Party, nor the government, nor the individual members might not intervene into this proceeding at some point and argue another position, a position of course that there is no jurisdiction.
Since it will be another couple of weeks until submissions are filed and further orders are made, the Legislative Council has got to make a decision pretty much today. Do we want our original interest to be represented in this proceeding not knowing what the Ombudsman might argue or what other parties might join and seek to argue? So I think it is a fairly simple question in a way.
Having got to the end of all that, there is something that comes to mind. Even if Mr Jennings is right and we get to the end of this process, there still needs to be an independent investigation into this matter — the matter of the allegation of members misusing their entitlements. The government is not putting any way forward there. We have a Victoria Police investigation underway, but to me approaching this from the point of view of criminal law was always the wrong approach, not that I am seeking to direct the Victoria Police one way or another. I am just simply saying I was not the person out there advocating for Victoria Police to investigate this matter. I am following the path that says if there is an allegation a member has misused their entitlements, that needs to be investigated from the point of view of a misuse of resources against the Members' Guide, itself a potential breach of the code of conduct, that being a potential breach of privilege of the house to be considered and dealt with in the usual way.
That necessity is going to remain regardless of the outcome of this particular question. So with all of
these arguments that the government keeps putting forward I wonder what it thinks is going to happen, because in the end there must be a proper investigation of this very serious allegation. But this, I suppose, is a broader — —
[Speech was interrupted.]
Mr BARBER — I do not know about the ones I do not know about, Mr Jennings, but if you can shed any light — —
[Speech was interrupted.]
Mr BARBER — No. Right then I simply addressed one of them in relation to the Victoria Police criminal matter. From the beginning my view has always been that if there is an allegation against members, it is on members to be able to demonstrate to the public they are capable of enforcing the rules on themselves. We are hardly the first Parliament to have had issues raised about the question of members entitlements.
Since we are now getting a bit more expansive I think the Leader of the Government at some point came into this house and suggested that he wanted to establish a body á la the UK House of Commons, which was going to be a parliamentary adviser or monitor to deal specifically with code of conduct matters. That is a model for which I have advocated for many years since my arrival in this Parliament. At some point the Leader of the Government either in this place or to me personally said that that model was something that was coming forward. Then we read — as you do — articles in the newspapers suggesting that it had been nixed at cabinet.
[Speech was interrupted.]
Mr BARBER — I do not believe everything I read in the papers.
[Speech was interrupted.]
Mr BARBER — But it did make me wonder. Is this Parliament making any progress in terms of setting up formal mechanisms to enforce the rules upon itself? I do not think we are. Today we have just seen another backward step.
Unfortunately there have been a number of these matters in which I have been involved in this Parliament. I would never have imagined that I could have been involved in so many different debates in this house that went to the conduct of members or ministers; I cannot even keep score of how many times I have had to stand up and address these matters.
In relation to the decision-making about the approval of the Windsor Hotel, in that instance the Ombudsman asserted their jurisdiction and the Attorney-General backed off and accepted the investigation. Here the circumstances are reversed. Fair enough. But the simple question before the house is: should the Legislative Council be represented in the arguments put before the court? I think that at least is a yes/no question despite the numerous other uncertainties that have been raised around the matter. It is for that reason that I have moved the motion and urged all members to vote yes.
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