2015-11-25
Mr BARBER (Northern Metropolitan) — I move:
That, pursuant to section 16 of the Ombudsman Act 1973, this house refers the following matter to the Ombudsman for investigation and report:
(1) allegations that ALP members of the Victorian Parliament misused members' staff budget entitlements, against the provisions of the Parliament of Victoria Members' Guide, that is, 'Electorate officers are employees of the Parliament of Victoria, and are directly accountable to the member in whose electorate office they work … These positions are provided to support the member in their parliamentary and electorate duties. The Parliament does not fund positions to support the member's political or party duties'; and
(2) any other breach of applicable policies, laws or codes in relation to these allegations.
This motion requires the Ombudsman to investigate and report back to the Parliament on a matter that has swirled around for some time in the political domain. It relates to an allegation that ALP members of the last Parliament misused their staff budgets in contravention of the guidelines that were then contained within the Members' Guide. I am dismayed that this matter has swirled around for as long as it has. When allegations are made in relation to the misuse of entitlements, we know how damaging that can be to the public trust. It has occurred all too often in other jurisdictions. It occurred in this jurisdiction in relation to Mr Geoff Shaw. Frankly, the detail is generally lost on the public; the public simply forms the view that all politicians are rorters.
The government may have reasons for wanting to avoid a definitive investigation into this; likewise, the opposition may very well have its reasons for wanting to let this controversy go on. But in order to restore confidence in the Victorian Parliament, I believe this matter should be resolved and resolved quickly. This has been the first opportunity and the best mechanism available to me in order to do that. I hope once the investigation is underway, if this motion were to be successful, that we could all then wait for that investigation to bring down its results.
In terms of the particular mechanism that I am proposing here, it is the provision within the Ombudsman Act 1973 that allows either house of Parliament to direct the Ombudsman to investigate a particular matter.
In relation to entitlements in the matter of Mr Shaw, the Ombudsman in that case did investigate and made findings as to the facts and also as to the Ombudsman's view on whether Mr Shaw had breached the rules regarding entitlements. It then became a question for the Privileges Committee of the lower house to decide what, if any, remedy needed to be applied, based on those findings. At the end of the day it is only politicians who can enforce the rules of parliamentary privilege and parliamentary entitlements upon themselves, and that is what we ought to be doing for the greater good of the public's confidence in our system.
I know the opposition has attempted to refer this matter off to Victoria Police, which may be investigating some matters or interviewing some persons. The problem with that is that the police will only be looking at issues of fraud and criminality. I make no judgement on that, but I am yet to see any indication that that is what has gone on here. The problem is that the police, after concluding their investigation, may never report back to the Parliament or the public as to what they concluded and why. It may simply be that nothing arises out of that investigation, whereas in the case of Mr Shaw, as I said, we had a bit of a furrow to follow in terms of the Ombudsman's capacity not only to gather the necessary evidence but also to connect that to the Members' Guide entitlements and even the code of conduct for MPs.
The interlocking powers of these various bodies — from the Ombudsman to IBAC to the police and the rest of it — does create some gaps and possibly some overlap, but I believe the saving grace is the specific provision in section 16 that allows the Parliament to direct the Ombudsman to make this investigation. That means, first and foremost, that we are agreeing to participate in the investigation as a Parliament because we are the ones ordering it, and, secondly, that all the various necessary powers that the Ombudsman holds to conduct investigations are enlivened by the very fact that this investigation has been triggered by this specific provision and agreed to by the Legislative Council.
I do not want to labour this issue. I hope this matter can be resolved as quickly as possible. I should say that in setting out the matter for investigation I have attempted to keep it as narrow as possible and to relate it to the specifics of the allegation. This is not an investigation into the Labor Party generally; it is not an investigation into the election campaign. It is an investigation into the allegation that has been aired publicly. I have narrowed down the terms to deal specifically with that matter, allowing only that if the Ombudsman were to uncover other breaches of applicable policies, laws or codes in relation to the same allegation, the Ombudsman could also make findings on that matter. I hope that the house will support this motion.
[Speech was interrupted.]
Mr Barber — Not my side.
[Speech was interrupted.]
Mr BARBER (Northern Metropolitan) — I would like to thank all members for their contributions, and I note that the chamber has been almost dead silent during this debate. I think all members have been keen to hear the arguments and propositions put forward by other members so as to fully understand the issues at play. That in itself is a good sign.
However, I particularly want to discuss the arguments made by my learned friend Ms Symes, which I think should be ticked off briefly before we conclude this matter. Ms Symes started off by outlining her résumé, which includes recently working for the former Leader of the Opposition, now Premier, as his legal adviser. Ms Symes stated that in the Leader of the Opposition's quest to clean up Victorian politics she had pursued a number of matters against the then government.
Ms Symes did not give us the whole of her résumé, though. I believe she also previously worked for the Attorney-General in government, and therefore she may well have been advising the then Attorney-General Rob Hulls when he had to engage with the powers of the Ombudsman in relation to the inquiry into the Windsor Hotel decision. I was part of the committee that referred that matter to the Ombudsman. If Ms Symes was not advising the Attorney-General directly on that matter, she may well have been sitting at a desk next to the person who was.
The correspondence and the arguments put by the Attorney-General at that time as to the jurisdiction of the Ombudsman then formed part of the Ombudsman's reports. All members should read the report into the Windsor matter in order to further understand the context in which we are operating. The star witness of that matter, Peta Duke, never appeared. Effectively the Attorney-General advised her not to attend, and perhaps therefore Ms Symes was, in effect, her lawyer. However, I do not fully know the background of that matter. If the Leader of the Government and Ms Symes want to argue that our integrity system has been cobbled together over many years, I will certainly concede that point. Not only within these integrity bodies but between them there are some areas yet to be mapped out. Who knows — there may even be some areas that could be clarified.
I think Ms Symes's argument started from a discussion about how the Geoff Shaw matter got to the Ombudsman. The way it got to the Ombudsman is the way she described it — it was via a protected disclosure. A protected disclosure is certainly one way for a matter to get to the Ombudsman. The Ombudsman Act 1973 does not clearly lay out the steps, the form of the investigation or anything else that the Ombudsman has to do. Likewise I would argue that I would not be one of the people who would concede in the form that Mr Jennings suggested. I am the mover of the motion, so I clearly believe it has legs.
[Speech was interrupted.]
Mr BARBER — I ask Mr Jennings if I look confident from where he is sitting, opposite me. I will proceed a few more steps, and then he can see how confident he thinks I am.
In the same way, section 16 of the act provides another way for a matter to get to the Ombudsman, and once it gets to the Ombudsman it is for the Ombudsman to investigate it in the way they decide. The way a matter gets to the Ombudsman, the way it arrives in their inbox, does not determine where the investigation goes next. The point is that it does arrive, and it is therefore a matter that they are able to investigate. Ms Symes talked about the remit and the way it arrives. Mr Jennings talked about the pathway. The point is that the pathway is that it ends up in the in-tray of the Ombudsman.
In relation to a couple of other matters, we understand that the police investigation is underway. The Ombudsman Act says that the Ombudsman should not investigate in a way that would prejudice a police investigation or a matter that is before the courts. I do not believe this investigation will in any way prejudice any police investigation. They may well be looking at the very same material and interviewing the same people, but that is all out in the open now. They are simply asking different questions — one about aspects of criminal law and the other about aspects of the administration of these allowances.
As Ms Symes said, it comes down to administrative functions and administrative actions. The question will be: was an MP who is not specifically excluded under schedule 2 from being the subject of one of these investigations engaged in an administrative action when they signed the timesheet, directed the staff member and a whole range of other matters I am not aware of that may have led up to these staff being allocated certain tasks? To be clear, MPs are not exempt under schedule 2 of the act. It is perhaps novel that we would be investigating MPs in relation to their administrative actions. For the most part, they have MP duties rather than administrative duties.
Ms Symes even used the word 'disrespectful'. She said it would be disrespectful to foist onto the Ombudsman a question of jurisdiction. As Ms Symes noted, there is a provision within the act for either the Ombudsman or the parties to the investigation to seek clarification from the Magistrates Court as to jurisdiction.
[Speech was interrupted.]
Mr BARBER — Sorry, the Supreme Court. I have my level wrong there.
In the case of the Windsor inquiry it was very simple. The Ombudsman simply suggested to the Attorney-General by correspondence that the Attorney-General could take it to the Supreme Court if there was any doubt about jurisdiction. It is not that we are forcing the Ombudsman to go off to the Supreme Court. They can simply assert their jurisdiction, as Ombudsman Brouwer did, and it would be up to the parties to make an application to the Supreme Court if they do not like it. That is where the government makes a leap of logic and suggests that the Parliament and the Department of Parliamentary Services would want to join in with this action. The Presiding Officers and the Parliament are not parties to it. They are not the ones being investigated. I have not suggested that somehow the Parliament has failed in its administrative actions here. That is not what this is about.
Here today we have the Parliament, or at least one house of it, with our own Presiding Officer instructing that the Ombudsman should get into this investigation posthaste. Of course what we would expect is that MPs, Presiding Officers, the government and Parliamentary Services would assist the Ombudsman with the investigation, including with the necessary access to facts and personnel records if necessary, but that does not necessarily make them a party to the matter.
In any case I do not believe it is a waste of time or in any way disrespectful to the Ombudsman to have these matters tested. If it is the case that there is a gaping hole in the integrity system, it is probably better that we and the public know that as soon as we possibly can. I cannot imagine a better mechanism than this chamber setting up and instructing an investigatory body. I suppose it would be possible to do that, but this body, the Ombudsman, comes with its own set of statutes and its own experience in this area. The Ombudsman is an independent officer of the Parliament, and here it is: the Parliament is asking the Ombudsman to investigate on its behalf. I am sure we can all have great confidence in the Ombudsman's work and the Ombudsman's findings. The government has not even suggested otherwise. In fact it has been very explicit in saying that if this investigation comes to life, it will cooperate with it and, hopefully, not even suggest that the Ombudsman ought to go off to court and prove their jurisdiction. However, we know that last time Labor was in government that is exactly what the then Attorney-General was trying to do.
If it makes Mr Jennings's day any better, I am in fact feeling quite confident that the Ombudsman will be able to deal with this matter. I think I have been as fair in my assessment of the legal matters and as forthcoming as I think both Mr Jennings and Ms Symes were. I certainly hope that the outcome of this motion passing today is that we get more confidence in the ability of the Parliament as an entity and our integrity system to ensure that any breaches of any applicable codes or rules can be independently investigated, reported upon and dealt with appropriately.
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