2016-08-30
MR BARBER (Northern Metropolitan) — I want to be careful not to destroy any more of what remains of the goodwill associated with getting this legislation passed as quickly as possible. There have been plenty of attempts to apportion blame in the debate so far and very few wanting to take on the responsibility. The fact is that this legislation, or the particular clause that is causing so much of a problem here, actually passed the Parliament not so long ago, and there would be many of us here who actually voted for it. I do not think anybody noticed at the time the potential trip-wire that was being set up and the unintended consequences whereby someone who might have even inadvertently failed to sign the new version of their councillor code of conduct was actually incapable of then correcting the error, short of jumping in the TARDIS and flying back to a previous time and changing the future.
Yet, as emerged over time as the office of local government made inquiries, huge numbers of councillors had one way or another failed to meet the requirements. We are looking at many, many councillors and in fact a number of whole councils being made ineligible. I guess you could say that was their fault, but again, the government came in — I am not sure why — wanting to defend its own position. It basically claimed that it had put out some memos and a media release and therefore it was absolved of any responsibility. I think this could be one of those occasions when we can all take a little bit of the responsibility and just focus on actually solving the problem. I know that is what the voters would want us to do, particularly as we are now approaching so close the day for a vote for some new local councils.
When you are talking about codes of conduct for local councillors, it is almost impossible to avoid the comparison with the code of conduct that applies to MPs here in this place, which is to be found in the Members of Parliament (Register of Interests) Act 1978. Remember that year for a moment, Acting President Ramsay. I was 12 at the time, but for you, Acting President, 1978 could have been a more memorable year. Anyway, in that particular piece of legislation we have at section 3 a code of conduct for members of state Parliament. No-one has ever been required to sign it on arrival here in the Parliament.
We swear an oath of allegiance to the Queen, and that is about it. Yes, we are bound by the code — whether we know it or not and whether we like it or not — but no-one would suggest for a minute firstly that we have to sign it or else if we do not sign it somehow we are not willing to be bound by it; and secondly that if we fail to sign it, even due to an inadvertent error, that we should be thrown out of Parliament with no way back.
So that is the state of play with regard to state MPs, and I think a little bit more leniency should be given to those councillors who inadvertently failed to sign their code of conduct. No sympathy of course should be given to the Michael Tetis of this world, who to this day still want to thumb their nose at the code of conduct — but I suspect it is the voters of Moreland who will sort him out long before this legislation could do the same.
As has been noted, codes of conduct for local councillors are regularly reviewed. They can be 15 pages. I know of some that are 30 pages. In relation to our own code of conduct, as state MPs we have got paragraphs (a) to (f) in section 3(1). Let us just have a little bit of a look at what they are. First of all the code says:
It is hereby declared that a Member of the Parliament is bound by the following code of conduct …
There is no requirement to sign it, let alone in any particular person's presence. Then it says:
(a) Members shall—
(i) accept that their prime responsibility is to the performance of their public duty and therefore ensure that this aim is not endangered or subordinated by involvement in conflicting private interests;
(ii) ensure that their conduct as Members must not be such as to bring discredit upon the Parliament …
Well, with the now very well known issues that this government has got itself into with regard to the conduct of individual members and with the numerous problems that the previous government had in relation to conduct of individual members, you would imagine that we would be falling over ourselves to raise the standards required of state MPs: create a new code of conduct and new ways of ensuring that MPs are aware of it, set up tribunals and put in place a whole range of checks and balances in relation to MPs and their code of conduct. Not at all. In fact when you get down to the very bottom of section 3, it says:
(2) Without limiting the generality of the foregoing in the application and interpretation of the code regard shall be had to the recommendation of the Joint Select Committee of the Victorian Parliament appointed pursuant to The Constitution … presented to the Legislative Assembly on the 23rd day of April, 1974 …
That in fact is the last time that the Victorian state Parliament decided to review its own code of conduct.
[Speech was interrupted.]
Mr BARBER — In 1974, Mr Finn.
[Speech was interrupted.]
Mr BARBER — You are going to tell me your footy team won?
[Speech was interrupted.]
Mr BARBER — Well, no wonder that year comes to your recollection, Mr Finn — through you, Acting President. But 1974 was the last time this state Parliament took a good, hard look at itself in relation to the conduct of members and the findings of that inquiry — which I have in fact read, Acting President, it will not surprise you to know, but I do not know how many other members have done so, even though they are subject to interpretation of the code through that particular committee of inquiry. There may not even be one other member in this entire Parliament who has actually even read it. That was what they used to create a code of conduct for members in 1978, and no-one has touched it since.
We are constantly adding to the responsibilities of local councillors, constantly reviewing their code and forcing them to then go and sign it and putting in more and more layers of bureaucracy and trip-wires to the point where you basically cannot even disagree with someone without them making a complaint against you. Yet here in Parliament we have got nothing. We have got paragraphs (a) to (f) and we have got an act that is coming up to 40 years old. If a member is alleged to have perhaps misused their allowance, whether it is an exercise with the fuel card or perhaps sending electorate officers to do party work, well, what happens there?
[Speech was interrupted.]
Mr BARBER — Not that I would suggest or in any way want to pre-empt the findings of the Ombudsman in her investigation now. The government has said they followed the rules. Others have said the rules are unclear. Mr Leane over here said there are no rules. It certainly cannot be all three things; it has to be one of those three, right? We will wait and read the report of the Ombudsman on that particular set of allegations that have been made about the use of parliamentary entitlements, which if misused would certainly be a breach of the code of conduct. A serious breach of the code of conduct, as we read in the case of Mr Shaw, represents a breach of a parliamentary privilege to be punished by the Parliament itself. Yet we have just delayed it by six months and been off to the Supreme Court to decide whether the Ombudsman can ever investigate MPs' use of entitlements. That just indicates the enormously difficult, clunky nature of code of conduct breaches when it comes to state MPs — but state MPs are always ready to pass new rules in relation to local councillors.
By the way, if the Premier wanted to bring in a new code of conduct for members expanding on what is in the legislation, then he could in fact do that by regulation, because section 11 of the same act — it is quite a short act — actually says:
The Governor in Council may make regulations prescribing any matters or things authorised or required or necessary to be prescribed under this Act.
So if it was necessary to expand on those paragraphs (a) to (f), perhaps what the Parliament ought to do is establish its own committee to go away and write a more up-to-date, modern code of conduct. If that was to be recommended to the house with support from members, then through the mechanism of regulation the Premier could adopt it and create new rules for MPs.
But I think hell will freeze before that happens, because let us face it, state governments love bashing up local councils. It is just a great day whenever they can take some local council to task. It is 24 hours when they do not have to deal with their own problems, and it is habit forming. Every government, and I detect it with increasing frequency, seems to come up with a reason for sacking another council. It was Geelong in this term, and we had a good old debate about that.
It is a bit addictive, really, is it not, for state governments to externalise their own internal political problems by finding something wrong with a council somewhere and making it the story of the day. The problem is there are only 79 of them, so you cannot buy yourself out of trouble indefinitely there. In my view this has been another example of this. Notwithstanding the good multipartisan support we are getting on correcting this particular matter here in the Parliament, and doing it with some alacrity, we need to do it before the end of today, otherwise people will be in trouble by Thursday, 1 September — and, as noted, we are coming up to council elections as well.
That is my contribution on the bill. There is plenty of blame to go around, both among the councillors and the Parliament — the government which drafted this legislation. I do not think there are too many people out there who can really claim that they saw this particular problem coming, but we are correcting it here. It does, though, bring into focus the need for much greater improvement in relation to our ability to hold ourselves to account through a code of conduct. I look forward to any discussions with other members and the leaders of other parties about how we might implement that before this term of government is out.
To access full speeches and debates please visit http://www.parliament.vic.gov.au/hansard where you can search Victorian Hansard publications from 1991 onwards.