2016-10-12
MR BARBER (Northern Metropolitan) — I move:
That, further to the resolution of this house on 10 February 2016 directing the President to act as the representative of the Legislative Council of Victoria in the Supreme Court proceedings pursuant to section 27 of the Ombudsman Act 1973, this house —
(1) notes that —
(a) the Supreme Court ruling of 26 August 2016 determined that 'the Victorian Ombudsman has jurisdiction under section 16(2) of the Ombudsman Act 1973 to conduct an investigation pursuant to the referral from the Legislative Council made on 25 November 2015';
(b) the Attorney-General has sought leave to appeal the determination, automatically rendering the President a respondent in the matter;
(c) the Attorney-General has made a written case of application and that the Court of Appeal has directed that respondents are to provide a written case in response to the court on or before 18 October 2016;
(2) reaffirms 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) respond on behalf of the Legislative Council in such proceedings in order to contend the view set out in (2);
(b) respond to any further appeals by the Attorney-General unless otherwise directed by this house;
and for the purposes of (3)(a) and (3)(b) this may include, but is not limited to, seeking legal advice, engaging counsel and making submissions.
The only update to the house since we last authorised the President to act on our behalf in the Supreme Court is that in the first hearing the house's view as to the powers and jurisdiction of the Ombudsman was upheld and that since then the Attorney-General has decided to appeal that hearing. I am therefore hoping that it will be a matter of routine for the house to reaffirm this motion that I have moved at the request of the President to ensure that the house is still willing to participate in this matter. We are left with little choice. The Attorney-General has decided to appeal the matter. We are automatically connected to the matter, and therefore it is not clear what would happen if the house decided to in fact now reverse its position and give up. I do not propose to spend any time commenting on the Attorney-General's decision to appeal. It would be wrong for me to suggest that his appeal was unmeritorious or to try and second-guess the decision of the court. We will leave that for the court to decide in due course.
There is just one matter that I am concerned about and that I think should be raised here, though, and that is the decision by the Attorney-General. He is effectively standing in for those individual MPs in this house who have had accusations made against them which are now being investigated by one arm of our integrity system, that being the Ombudsman. If I was accused or was being dragged before an integrity body, it would be my job to get my own lawyer and represent myself. Because the members in this case who have been subject to these allegations happen to be government MPs — that is, members of the government party — they have got the government using taxpayers dollars actually challenging the jurisdiction of the Ombudsman to investigate them, and I am not sure that that is right.
It could be that what the government is trying to do here is keep all of its people under the one umbrella. Some of them may already be feeling that this has gone on too long and that they ought to find their own voice and make their own disclosures. Others of them may have already been obtaining their own legal advice and perhaps planning their own legal strategy — I do not know — in relation to those matters. I just simply make the point that this is unusual compared to some of the circumstances in other states where individual members who are dragged before integrity bodies have to actually find their own lawyers and pay for them if they wish to challenge the jurisdiction of that integrity body.
Members being accused of misusing their entitlements is of course nothing new. It happens from time to time, and in other Westminster parliaments around the world there have been large and long-running scandals where many, many members have been caught up with and caught out doing the wrong thing, so I am not sure why there has been such an overreaction to these accusations. If someone accused me of misusing my entitlements, first of all I would have an inquiry immediately into my own conduct, and secondly, if I thought there was anything in doubt, I would pay back the entitlements and I would apologise to the house for any error, inadvertent or otherwise.
I believe it was a promise of the Andrews government that it would introduce a parliamentary standards commissioner. That would normally be one of the bodies where matters would be referred to or where individual members themselves could seek advice in relation to entitlements. I note also that the code of conduct and the disclosures that exist in the Members of Parliament (Register of Interests) Act 1978 really have not been updated for a very, very long time. While local government councillors now have codes of contact that sometimes run into dozens of pages, we MPs have got a bunch of dot points basically. At the same time there is a regulation-making power under that act which the Special Minister of State could use if he chose to actually produce a wider, more all-encompassing code of conduct or code of disclosure in consultation with MPs in this place. So in terms of the mechanisms that are in place to deal with accusations of this type, to have those accusations actually investigated and to clear the air, we are lacking here in Victoria and that may be part of the reason that we have this particular problem. But, as I say, I am hopeful that the house will simply reaffirm our previous instruction to you, President, to continue representing us on our side of this legal argument, and thereby if members could support this motion, we would be most grateful.
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