Ombudsman should have power to say ‘no’ to investigations - 28th March 2018 Heraldsun

Theo Theophanous: Ombudsman should have power to say ‘no’ to investigations

Theo Theophanous, Herald Sun

March 27, 2018 11:39pm

Victorian Premier Daniel Andrews speaks to the media following the release of Victorian Ombudsman Deborah Green's report. Picture: AAP/Alex Murray

THE 21 Labor MPs named by Victorian Ombudsman, Deborah Glass in her recent report are not cheats.

Misguided? Maybe. Too eager to help get their party elected? Almost certainly. Or as the Ombudsman said, they believed that what they were doing was “legitimate and that they were contributing to an approved pooling arrangement”.

I don’t think they are cheats any more than I think that Matthew Guy is a friend of the mafia because he found himself at a lobster dinner with an alleged crime figure.

It would be a great shame if we went into an election that was nothing more than a slanging match with one Party calling the other cheats and the other Party referring to the Opposition as friends of the mafia.

No. There are too many important issues around health, education, the economy, transport, community safety, energy security and household and business costs. These are the real issues that concern Victorians.

The money used to pay electoral staff has been repaid and the electorate will take into account what, if any, weight to put on the issue at the next election.

The Ombudsman’s report vindicated the pursuit of the story by the Herald Sun and it now looks like the Liberal Party and the Greens will try to benefit from the Herald Sun and Ombudsman investigations by spending more public resources on new inquiries for a political advantage. That is folly.

In the first term of the Bracks government, I participated in several Upper House inquiries the Liberals established using their numbers, to attack the government.

The public saw they were not independent inquiries but witch hunts and returned Labor with an increased majority.

Sadly, what is being missed are the crucial matters of law and public accountability that this case has unearthed. The Ombudsman Act states that either House of Parliament, or even a parliamentary committee, may refer “any matter” to the Ombudsman and once referred she must investigate and report.

“Any matter” is very broad and subject to abuse by political parties wanting to attack their opponents. The Ombudsman wanted to test whether the Upper House could refer “any matter” to her. Importantly she wanted to know whether she was required to inquire under the Act even if the matter fell outside of her normal remit. She referred the question to the Supreme Court.

At stake was whether or not either House of Parliament or even a parliamentary committee of five members could by majority motion force her to inquire into any matter they wanted. If the answer was yes, she would be required to use all powers available to her to investigate no matter how politically partisan the request might be.

Victorian Ombudsman Deborah Glass should have the power to refuse investigations. Picture: Alex Coppel

In this case the Greens and the Liberal Party used their numbers in the Upper House to instruct the Ombudsman to inquire into the use of Labor electorate staff. They voted down a motion from Gavin Jennings to have the Ombudsman also inquire into Liberal and Greens use of their staff.

They then instructed the Upper House President to spend public money to employ legal Council to join in the case on the side of the Parliament having such power to refer “any matter” and force the Ombudsman to enquire.

Surely the Government cannot be held responsible for money (about $460,000) authorized to be spent by the Liberals and the Greens seeking a political outcome that favored them. They alone are responsible for these costs. 

The Supreme Court and later Court of Appeal and High Courts held that as the law stands “any matter” meant “any matter”.

Therefore any House of Parliament could refer anything to the Ombudsman and under the Act she must inquire into it.

This level of mandated referral from Parliament does not even apply to IBAC which has discretion over what it enquires into and is constrained by its own legislated parameters. When Matthew Guy referred himself to IBAC over the lobster dinner affair he would have known that IBAC could say no and so they did.

We now have a situation where referrals could occur in relation to such things as the Liberal Party’s relationship to the mafia for fund raising, Liberal and Labor branch stacking or the Greens’ bullying claims in Batman. Once referred they must be investigated by the Ombudsman.

The dangers of this were evident, which is why the Department of Premier and Cabinet sought to appeal against the Supreme Court decision and instructed the Attorney General Martin Pakula to act on behalf of the Government..

This is an important part of the separation of powers in our democracy. It is designed to ensure that a Majority of Members in one House could not target opponents who spoke up against them in another House. The Court rulings in this case now mean that the Upper and Lower Houses can in effect initiate enquires into activities of each other’s Members by simply referring them to the Ombudsman. 

It was not only concerns about politicising the Ombudsman’s office that led to the appeals. The court ruling also impinged on another convention that goes back hundreds of years which precludes one house of Parliament from inquiring into activities of members of the other house.

This is an important part of the separation of powers in our democracy. It is designed to ensure a majority of members in one house could not target opponents who spoke against them in another. But now the upper and lower houses can in effect initiate inquires into each other’s members by simply referring them to the Ombudsman.

The government has been unfairly attacked for seeking legal clarification of these principals. The relatively small amount of $139,000 (not $1 million) that was spent in external legal costs to settle the issues was far less than what the Greens and the Liberals authorized to try to get around long standing conventions for their own political benefit.

The point of law has now been clarified but I am not sure it is for the better. It has opened up a hornet’s nest whereby any party in control of one house of parliament, or even a parliamentary committee, can use the Ombudsman as a political weapon.

Despite the politicisation of the Ombudsman’s office, I don’t think any political party will want to legislate to limit the power of parliament to make referrals to her on “any matter”.

But if we want to avoid the Ombudsman’s office being used for blatant political purposes, we need to give her one more power. The power to use her discretion and say no.

Theo Theophanous is a commentator and former government minister.

Blog with Theo at www.theotheophanous.org