Glass v President of the Legislative Council
[2016] VSC 507
•26 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 00284
IN THE MATTER of an application by DEBORAH GLASS in her capacity as Ombudsman for the State of Victoria for determination of a jurisdictional question pursuant to section 27 of the Ombudsman Act 1973
| DEBORAH GLASS (in her capacity as Ombudsman for the State of Victoria) | Plaintiff |
| v | |
| The President of the Legislative Council | First Defendant |
| The Attorney-General for the State of Victoria | Second Defendant |
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JUDGE: | CAVANOUGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9-10 May 2016 (last written submissions received 7 June 2016) |
DATE OF JUDGMENT: | 26 August 2016 |
CASE MAY BE CITED AS: | Glass v President of the Legislative Council & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 507 |
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STATUTORY INTERPRETATION – Power of Legislative Council to refer matter to Victorian Ombudsman under s 16 of the Ombudsman Act 1973 – Jurisdiction of Victorian Ombudsman pursuant to s 16 to investigate matter referred – Whether either power of Legislative Council or jurisdiction of Victorian Ombudsman non-existent under statutory scheme as a whole – Referral valid – Jurisdiction available to investigate matter – Ombudsman Act 1973, ss 13, 13AAA, 13AA, 13AB, 14, 15, 15A, 15C, 15D, 15E, 15F, 16, 16A, 16B, 16C, 16D, 16E, 17, 19, 21, 23, 25AB, 27 – Independent Broad-Based Anti-Corruption Commission Act 2011, ss 4, 73 – Protected Disclosure Act 2012, ss 9, 26, 32, 53 – Constitution Act 1975, s 94E
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K P Hanscombe QC with Ms F McKenzie | Victorian Ombudsman’s Office |
| For the First Defendant | Mr P Hanks QC with Ms M Szydzik | Lander and Rogers |
| For the Second Defendant | Mr R Niall QC, the Solicitor-General, with Ms J Watson | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
By a proceeding commenced by originating motion on 29 January 2016, the plaintiff, in her capacity as the Ombudsman for the State of Victoria, applies under s 27 of the Ombudsman Act 1973[1] for a determination as to whether she has jurisdiction to conduct a certain investigation on which she has embarked.[2] The investigation relates to a referral made to her on 25 November 2015 by the Legislative Council of Victoria in reliance on s 16 of the Ombudsman Act 1973.
[1]In this judgment, except where the contrary intention appears, a reference to ‘the Act’ is to be read as a reference to the Ombudsman Act 1973.
[2]By taking certain preliminary steps: the Ombudsman’s affidavit sworn 28 January 2016 [19].
The question before the Court is principally a question of the proper interpretation of the Ombudsman Act 1973 and certain related Acts. Section 16 of the Ombudsman Act 1973 is of central relevance. However, it will be necessary to consider s 16 in its entire statutory context; to have regard to the relevant legislative history; and to take into account the functions and privileges of the Victorian Parliament, its Houses, its committees and its individual members.
At the time of the referral,[3] s 16 of the Ombudsman Act 1973 provided:
[3]The language of s 16 has since been amended to make it gender neutral. See further below.
(1)At any time—
(a)the Legislative Council or a committee of the Legislative Council;
(b)the Legislative Assembly or a committee of the Legislative Assembly; or
(c)a joint committee of both Houses of Parliament—
may refer to the Ombudsman for investigation and report any matter, other than a matter concerning a judicial proceeding, which that House or committee considers should be investigated by him.
(2)Where a matter is referred to him pursuant to subsection (1), the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon.
Note
Section 25AB provides for the manner of reporting.
The resolution of the Legislative Council of 25 November 2015 was in the following terms:
This House refers the following matter 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.
In an affidavit sworn on 28 January 2016 in support of the originating motion, the plaintiff indicates that, in her view, any investigation she conducts pursuant to the Parliamentary referral would include the following matters:[4]
(a)whether staff engaged in campaign work for the ALP or other party political work related to the 2014 Victorian election campaign were paid or partly paid by Parliamentary funds, which are set aside for electorate officer work;
(b)whether any Members of Parliament signed payment forms for electorate staff when such staff did not perform any work as an electorate officer for that Member;
(c)whether any parliamentary rules in relation to the use of electorate officers were breached;
(d)whether current parliamentary rules in relation to the use of electorate officers are adequate.
[4]The Ombudsman’s affidavit sworn 28 January 2016 [9].
The plaintiff now takes a neutral position as to whether she does or does not have jurisdiction to conduct an investigation pursuant to the referral. She filed written submissions dated 9 February 2016 setting out arguments both for and against jurisdiction. At that stage, there was no other party to the proceeding. Had the proceeding remained in the same state, the Court would not have had the benefit of a proponent for any view nor of a contradictor of any view.[5] Fortunately, however, applications for joinder were later made on behalf of the President of the Legislative Council and on behalf of the Attorney-General for the State of Victoria. They wished to argue for and against jurisdiction, respectively. By consent orders made on 7 March 2016, the President of the Legislative Council was joined as the first defendant and the Attorney-General for the State of Victoria was joined as the second defendant. They have duly taken up opposing positions. Pursuant to an agreed timetable, the Attorney-General filed written submissions arguing against jurisdiction on 7 April 2016; the President filed written submissions arguing in favour of jurisdiction on 18 April 2016; the Attorney-General filed a reply on 22 April 2016; and the matter came on for hearing on 9 and 10 May 2016. All three parties were represented by senior and junior counsel throughout. At the hearing, the plaintiff maintained her neutral position. The defendants’ counsel spoke to their respective written submissions. At the end of the hearing, a further agreed timetable was set for the filing and service of any further written submissions of the parties on three designated topics. Subject to that further timetable, I reserved my decision. The Attorney-General filed further submissions on the three topics on 20 May 2016. The President of the Legislative Council filed answering submissions on 7 June 2016. The plaintiff indicated that she did not propose to make any further submissions.
[5]Cf CSR Ltd v Eddy (2005) 226 CLR 1, 11-12 [14].
As mentioned above, the question for determination requires the consideration of various provisions of several Acts of the Victorian Parliament. The Acts requiring consideration include, in addition to the Ombudsman Act 1973 itself, the Independent Broad-Based Anti-Corruption Commission Act 2011 (‘the IBAC Act’) and the Protected Disclosure Act 2012.Since the last exchange of written submissions, those three Acts, among others, have been amended by the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016 (‘the 2016 Act’). The 2016 Act, having received Royal Assent on 31 May 2016, came into operation, for the most part, on 1 July 2016. Some of the amendments made by the 2016 Act relate, directly or indirectly, to the jurisdiction, powers and obligations of the Ombudsman. Indeed, some of the very provisions referred to in the parties’ submissions in this case have now been amended by the 2016 Act, including the particular section under which the referral was made, namely s 16 of the Ombudsman Act 1973. The amendment to s 16 is merely to introduce gender neutral language, but more substantive changes have been made to certain of the other provisions to which the parties have referred. On the other hand, neither in their written submissions nor in their oral submissions to this Court did any party make any reference to the Bill for the 2016 Act or to the Act itself. This was despite the fact that the Bill for the 2016 Act had been read a second time in the Legislative Assembly on 10 December 2015 and in the Legislative Council on 24 March 2016. The Bill was passed (with amendments) by the Legislative Council on 5 May 2016. As mentioned above, it received the Royal Assent on 31 May 2016. Given their identities, the parties must have been aware of these developments as they were occurring. I can only assume that all of the parties considered, and still consider, that the 2016 Act does not need to be taken into account by the Court in the present case. Such a view might be based on the proposition that, under the Interpretation of Legislation Act 1984 and/or at common law, the amendments should be regarded as prospective only and as being inapplicable to any investigation to be carried out pursuant to a referral made before the commencement of the 2016 Act (such as the referral in this case); or that the particular amendments would not, in any event, touch or affect the constructional exercise involved in the present case; or both.
In accordance with what appears to be the common view of the parties, I will proceed, so far as the legislation is concerned, generally by reference to the form which the legislation took as at the date of the referral, namely 25 November 2015 (‘the relevant time’), and by reference to its prior history. Nevertheless, out of caution, I have also considered the effects of the 2016 Act and from time to time in the course of this judgment I will refer to the particular amendments made by that Act. As it happens, even if the amendments made by the 2016 Act were to be regarded as applicable to this case, the outcome, in my view, would be the same.
The constructional issue
The question of the Ombudsman’s jurisdiction in relation to the referral turns on the proper construction of the relevant legislative provisions. However, the parties differ from each other a little in the framing of the constructional issue.
The Ombudsman submits that the question is whether, on the true construction of s 16 of the Ombudsman Act 1973 (read in its own statutory context and in the context of those provisions of the IBAC Act and of the Protected Disclosure Act 2012 which intersect with provisions of the Ombudsman Act 1973), the Ombudsman’s power to investigate and report on a matter pursuant to s 16 is or is not limited by reference to the functions of the Ombudsman set out in ss 13-13AA (inclusive) of Part III of the Ombudsman Act 1973.[6] She submits that, if the power is not so limited, s 16 would allow her to investigate a matter (being a matter referred under that section) relating directly to Ministers, Members of Parliament, Ministerial officers, Parliamentary advisers or electorate officers, notwithstanding that she would not have jurisdiction to investigate such persons on the basis of a complaint under s 14 of the Act nor of her own motion pursuant to s 16A of the Act. Hence, apart from the suggested limitation, the present investigation would, in the Ombudsman’s submission, be within jurisdiction under s 16. The competing view, she submits, is that s 16 is limited by reference to the functions set out in ss 13-13AA (inclusive) of the Act and that s 16 is merely a machinery provision which empowers the Legislative Council, among others, to refer a matter (being a matter otherwise within the jurisdiction of the Ombudsman under ss 13-13AA of the Act) to the Ombudsman, rather than a provision that confers an additional function on the Ombudsman. On that view, if the content of a Parliamentary referral under s 16 went beyond the matters covered in ss 13-13AA (inclusive), the Ombudsman would have no jurisdiction to investigate. The Ombudsman proceeds on the basis that the presently relevant referral does go beyond the matters covered in s 13-13AA (inclusive). According to the Ombudsman, the ‘key concept’ in ascertaining the jurisdiction granted by these statutory provisions is the meaning of the phrase ‘any matter’ in s 16.
[6]See, generally, the Ombudsman’s written submissions dated 9 February 2016 [5]-[11].
By contrast, the Attorney-General submits that the ‘precise question’ that arises for resolution in this proceeding is not whether the Ombudsman has jurisdiction to investigate the referral, but whether the Legislative Council had power to make the relevant referral under s 16.[7] He places particular emphasis on the terms of the Ombudsman Act 1973 as a whole and on its interaction with the IBAC Act and the Protected Disclosure Act 2012. He submits that the scope of the referral power is to be determined by reference to the Ombudsman’s general jurisdiction and powers. He submits that, when s 16 of the Act is construed in that way, the Legislative Council had no power to make the relevant referral to the Ombudsman and the Ombudsman has no jurisdiction to investigate and report on the matter referred to her by the Legislative Council. According to the Attorney-General, to frame the analysis through the lens of the phrase ‘any matter’ contained in s 16(1), as the Ombudsman does, is inappropriate.[8] The Attorney-General contends that, in the light of the various contextual considerations to which he refers, s 16 of the Act cannot be construed as conferring a power to refer any matter to the Ombudsman divorced from the Ombudsman’s functions in Part III of the Act (which includes ss 13-13AA).[9] Rather, the Attorney-General contends, the power to refer matters under s 16 and the scope of the duty to investigate must be subject to the limits of the Ombudsman’s functions and jurisdiction in Part III. On that basis, he submits that the Ombudsman has no jurisdiction to investigate and report on the relevant referral and that the Court should make orders accordingly.
[7]See, generally, the Attorney-General’s written submissions dated 8 April 2016 [5], [15]-[19] and [33]-[34].
[8]Ibid [15]-[19].
[9]Ibid [33]-[34].
The general position of the President of the Legislative Council is as follows. He notes the Attorney-General’s submissions to the effect that the focus should not be on the phrase ‘any matter’ and that, instead, the scope of the referral power in s 16 should be considered in the broader context of the Act and related Acts.[10] However, the President submits, on its proper construction s 16 is nevertheless an additional and independent source of investigative power, being an additional power that is expressly contemplated by Part III of the Act and an independent power that is not constrained and limited by the provisions of Part III. He submits that s 16(1) authorised the referral; and that s 16(2) obliges the Ombudsman to investigate and report on the matter that is the subject of the referral.[11]
[10]The President of the Legislative Council’s written submissions dated 18 April 2016 [8] (including [8.1]-[8.3]).
[11]Ibid [22].
Short answer
In my opinion, s 16 is not just a machinery provision. It does more than merely supply a trigger for the exercise by the Ombudsman of functions identified elsewhere. Subject to certain provisions of the Ombudsman Act 1973 to which I will come, s 16(2)—when activated by a Parliamentary referral under s 16(1)—does confer on the Ombudsman a function additional to the functions of the Ombudsman identified in Part III of the Act. In the present case, the Legislative Council had power under s 16(1) of the Ombudsman Act 1973 to refer to the Ombudsman the matter the subject of its resolution of 25 November 2015; and the Ombudsman has jurisdiction under s 16(2) of the Act to investigate that matter. I will make a determination under s 27 of the Act accordingly.
Legislation
Having regard to the submissions of the parties and to the questions arising in this case as I see them, it is necessary to refer to the text of several pieces of legislation in considerable detail.
The Ombudsman Act 1973
The long title of the Ombudsman Act 1973 is:
An Act to provide for the Appointment in Victoria of an Ombudsman with Power to investigate Administrative Actions taken by or on behalf of Government Departments and other Authorities, and for other purposes.
The Act is composed of 10 Parts, of which Parts I, III, IV and V are the most relevant in this proceeding.
Part I is entitled ‘Interpretation’. It contains the definitions section, s 2. Some relevant terms are defined by reference to other Acts, including the IBAC Act and the Protected Disclosure Act 2012. I will later set out or refer to the relevant provisions of those Acts.
So far as presently noteworthy, s 2 of the Ombudsman Act 1973 provided at the relevant time, and still provides, as follows:
2 Definitions
(1)In this Act unless inconsistent with the context or subject-matter —
…
administrative action means any action relating to a matter of administration, and includes —
(a) a decision and an act;
(b)the refusal or failure to take a decision or to perform an act;
(c) the formulation of a proposal or intention; and
(d)the making of a recommendation (including a recommendation made to a Minister);
…
assessable disclosure has the meaning given in section 3 of the Protected Disclosure Act 2012;
authority means —
(a) a Department;
(b) an Administrative Office;
(ba) Court Services Victoria
(c) a specified entity —
but does not include an exempt person or body or a Councillor of a Council;
…
complainant means a person who makes a complaint;
complaint means a complaint under section 14;
…
corrupt conduct has the meaning given in section 4 of the Independent Broad-based Anti-corruption Commission Act 2011;
…
Department has the meaning given by section 4(1) of the Public Administration Act 2004;
…
exempt person or body means a person or body specified in Schedule 2;
…
IBAC means the Independent Broad-based Anti-corruption Commission established under section 12 of the Independent Broad-based Anti-corruption Commission Act 2011;
…
own motion investigation means an investigation by the Ombudsman under section 16A;
…
protected disclosure complaint means a disclosure determined to be a protected disclosure complaint under section 26 of the Protected Disclosure Act 2012 that has been referred to the Ombudsman under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011;
protected disclosure entity means—
(a) a member of Parliament;
(b) a Councillor;
(c)a member of the teaching service within the meaning of the Education and Training Reform Act 2006;
(d)a State funded residential care service within the meaning of the Health Services Act 1988;
(e)a person or body prescribed by Rules of Parliament made under this Act;
…
referred complaint has the meaning given in section 16B(1);
referred matter has the meaning given in section 16B(2);
relevant protected disclosure complaint means a protected disclosure complaint that the Ombudsman is required to investigate under section 15C;
…
specified entity means a person or body specified in column 1 of Schedule 1;
…
Section 2(3) provides:
(3) In this Act, a reference to a person who made a protected disclosure complaint or to a person who made a relevant protected disclosure complaint is a reference to a person who made a disclosure that was determined to be a protected disclosure complaint under section 26 of the Protected Disclosure Act 2012.
Part II of the Act is entitled ‘The Ombudsman’. Section 3 deals with the appointment and term of office of the Ombudsman. Subsections 3(1) to (4) provide:
3 Appointment of Ombudsman
(1)There shall be appointed a Commissioner for Administrative Investigations, to be called the Ombudsman.
(2) The Ombudsman shall be appointed by the Governor in Council and shall hold office in accordance with this Act.
(3) The Ombudsman shall not be a Member of Parliament of Victoria or of the Commonwealth or any other State.
(4) Subject to this Act, the Ombudsman holds office for a term of 10 years, and is not eligible to be re-appointed.
Section 6 provides for the appointment of an Acting Ombudsman. Section 7 provides:
7 Staff
Any employees that are necessary to enable the functions of the Ombudsman to be properly carried out may be employed under the Public Administration Act 2004.
Within Part II, s 10(3) provides that the oath or affirmation which the Ombudsman is required to take is to be administered by the Speaker of the Legislative Assembly. Under s 11, the Ombudsman may delegate ‘all or any of the powers or functions of the Ombudsman (except this power of delegation) under this or any other Act to any person…’.
Part III of the Ombudsman Act 1973 is entitled ‘Functions and Jurisdiction of the Ombudsman’. Part III was not amended by the 2016 Act, except to introduce gender neutral language in some provisions. At the relevant time, it read:
PART III—FUNCTIONS AND JURISDICTION OF THE OMBUDSMAN
13 Principal function of Ombudsman
(1)The principal function of the Ombudsman is to enquire into or investigate any administrative action taken by or in an authority, other than administrative action—
(a) that appears to involve corrupt conduct; or
(b) that is taken under the Freedom of Information Act 1982.
Note
See section 13AA(1)(a) for the Ombudsman's function in relation to corrupt conduct.
(2) The function of the Ombudsman under subsection (1) includes the power to enquire into or investigate whether any administrative action that he or she may enquire into or investigate under subsection (1) is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act 2006.
(3) The powers of the Ombudsman in relation to any administrative action taken by or in an authority may be exercised even if the action was taken on behalf of, or in the performance of any function conferred on, a person who or body which is not an authority, but nothing in this Act authorises the Ombudsman to question the merits of any decision made by that person or body.
(4)If any administrative action is taken by a person who or by or in a body which is not an authority (other than an exempt person or body) under any powers or functions conferred on or instructions given by an authority, the administrative action is, for the purposes of this Act, taken to be the administrative action of the authority, and the powers of the Ombudsman in respect of that action may be exercised accordingly.
13AAA Function of Ombudsman to investigate protected disclosure complaints
The Ombudsman has the function to investigate protected disclosure complaints about conduct by or in an authority or a protected disclosure entity.
13AA Other functions of Ombudsman
(1)In addition to the principal function in section 13 and the function in section 13AAA, the Ombudsman has the following functions—
(a) to enquire into or investigate any administrative action taken by or in an authority that appears to involve corrupt conduct on a referral from the IBAC under Division 5 of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011;
(b)to monitor compliance with Part 2A of the Prevention of Cruelty to Animals Act 1986 by officers of the Royal Society for the Prevention of Cruelty to Animals who are approved as general inspectors under section 18(1)(b)(ii) of that Act;
(c) to monitor compliance with the Domestic Animals Act 1994 by persons appointed as authorised officers under section 71A(1) or 72A(1) of that Act;
(d) any other functions conferred by or under this or any other Act.
(2) The function of the Ombudsman under subsection (1)(a) includes the power to enquire into or investigate whether any administrative action referred to in that subsection is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act 2006.
(3) For the avoidance of doubt, nothing in this Act authorises or requires the Ombudsman to enquire into or investigate anything done or omitted to be done by or in an exempt person or body.
13AB Ombudsman not to prejudice legal proceedings or investigations
(1) The Ombudsman must not perform his or her functions or duties or exercise his or her powers in a manner that would prejudice any—
(a) criminal proceedings or criminal investigations; or
(b) investigations by the IBAC or the Victorian Inspectorate.
(2) For the purposes of ensuring compliance with subsection (1), the Ombudsman may consult any of the following—
(a) the Director of Public Prosecutions;
(b) the Chief Commissioner of Police;
(c) the IBAC;
(d) the Victorian Inspectorate.
13AC Court Services Victoria
(1) Despite anything to the contrary in Schedule 2, Court Services Victoria is not an exempt body.
(2) In exercising his or her functions or duties or exercising his or her powers in relation to Court Services Victoria, the Ombudsman must not—
(a) interfere with the exercise of the jurisdiction of a court or VCAT; or
(b)direct a court or VCAT as to the manner or outcome of the exercise of its judicial function in any particular case or any other judicial or quasi-judicial function.
(3) The Ombudsman or a member of Ombudsman staff must not, pursuant to section 21, enter a court or tribunal hearing room in the course of the hearing of a matter, except with the agreement of the presiding judicial officer.
(4) The Ombudsman or a member of Ombudsman staff must not require a judicial member of the Courts Council or a member of the staff of Court Services Victoria—
(a) to provide any information (including answering any question); or
(b) to produce any document—
to the extent that the information or document concerns the exercise of a judicial or quasi-judicial function by a court, VCAT or a person specified in clause 7 of Schedule 2 or by any person exercising the function on behalf of a court or VCAT.
(5) Despite subsection (4), the Ombudsman or a member of Ombudsman staff may require a member of the staff of Court Services Victoria to provide information or documents in a matter that relates to the exercise of a judicial or quasi-judicial function if the relevant head of the jurisdiction has approved the provision of such information or documents, subject to any conditions agreed between the relevant head of the jurisdiction and the Ombudsman.
(6) In this section—
Courts Council means the Courts Council established under section 10 of the Court Services Victoria Act 2014;
member of the staff, of Court Services Victoria has the same meaning as it has in section 3 of the Court Services Victoria Act 2014.
I turn to Part IIIA of the Act, entitled ‘Enquiries’. At the relevant time,[12] Part IIIA was in the following form:
[12]Within Part IIIA, s 13A was amended, as from 1 July 2016, by s 56 of the 2016 Act. Section 56 provides:
PART IIIA—ENQUIRIES
13A Conducting of enquiries
(1)The Ombudsman may conduct an enquiry for the purpose of determining whether—
(a)an investigation under this Act (other than an investigation on a protected disclosure complaint) should be conducted; or
(b)the matter may be resolved informally.
(2)The Ombudsman may conduct an enquiry either on his or her own motion or as a consequence of a complaint under section 14, a referred complaint or a referred matter.
(3)The principal officer of any authority (if any) must assist the Ombudsman in the conduct of an enquiry.
13B Communication of information to complainant
Section 24 applies to—
(a)information obtained or received in the course or as a result of an enquiry under this Act; and
(b)the result of an enquiry under this Act and any recommendations made—
as if the enquiry were an investigation under this Act.
Part IV of the Ombudsman Act 1973 is headed ‘Investigations’. It consists of 10 Divisions, numbered 1, 1A, 2, 2A, 2B, 2C, 2D, 2E, 3 and 4. Division 2 is wholly comprised of s 16, being the section under which the Legislative Council made the referral to the Ombudsman which is presently in question. It is desirable to set out the whole of Divisions 1, 1A, 2,[13] 2A and 2B. At the relevant time,[14] those Divisions were in the following form:
[13]This involves the repetition of s 16, but it is desirable to do so in order to show s 16 in its immediate context.
[14]But see now ss 57, 58, 59, 60, 61 and 62 of the 2016 Act.
PART IV—INVESTIGATIONS
Division 1—Complaints generally
14 Making a complaint
(1)The following persons may make a complaint to the Ombudsman about an administrative action taken by or in an authority—
(a)a person or body of persons affected by the administrative action (an aggrieved person); or
(b)a member of Parliament acting on behalf of an aggrieved person; or
(c)if an aggrieved person has died, a person who the Ombudsman considers is suitable to represent the deceased person; or
(d)if the Ombudsman considers that an aggrieved person is unable to act for themselves, a person who the Ombudsman considers is suitable to represent the aggrieved person; or
(e)any other person if, having regard to all the circumstances, the Ombudsman considers it is appropriate to deal with the complaint.
(2)A complaint must be made in writing except where the Ombudsman considers that the complainant—
(a) is under 18 years of age; or
(b)does not have sufficient knowledge of the English language to make a complaint in writing; or
(c)has a mental or physical impairment that prevents the complainant from making a complaint in writing.
(3)The Ombudsman may deal with a complaint even if, on the face of it, the complaint does not refer to an administrative action taken by or in an authority if the Ombudsman considers there is a likelihood that the cause for complaint arose from such an action.
15Ombudsman must refuse to deal with certain complaints
(1)The Ombudsman must refuse to deal with a complaint that appears to involve corrupt conduct or police personnel conduct other than to notify the IBAC or the Victorian Inspectorate under Division 2C.
(2)The Ombudsman must refuse to deal with a complaint about administrative action that is taken under the Freedom of Information Act 1982 other than, if it could be made the subject of a complaint under Part VIA of that Act, to notify the Freedom of Information Commissioner under Division 2C.
(3)The Ombudsman must refuse to deal with a complaint if dealing with it would be contrary to section 13AB.
(4)The Ombudsman must refuse to deal with a complaint relating to terms and conditions of employment of persons who are or were employed by or in an authority unless the Ombudsman considers that the matter merits investigation in order to avoid injustice.
(5)If the Ombudsman considers that a complainant has or had a right of appeal or referral to, or review by, a tribunal, the Ombudsman must refuse to deal with the complaint unless the Ombudsman considers that in the particular circumstances—
(a)it would not be reasonable to expect or have expected the complainant to exercise that right; or
(b) the matter merits investigation to avoid injustice.
(6)If the Ombudsman considers that a complainant has or had a remedy by taking proceedings in a court, the Ombudsman must refuse to deal with the complaint unless the Ombudsman considers that in the particular circumstances—
(a)it would not be reasonable to expect or have expected the complainant to take those proceedings; or
(b) the matter merits investigation to avoid injustice.
15AOmbudsman may refuse to deal with certain complaints
(1)The Ombudsman may refuse to deal with a complaint if the Ombudsman considers—
(a) the subject-matter of the complaint is trivial; or
(b)the complaint is frivolous or vexatious or is not made in good faith; or
(c) the complaint lacks substance or credibility; or
(d)the subject-matter of the complaint has already been investigated or otherwise dealt with by—
(i)an integrity body within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011; or
(ii)any other person or body (whether or not still in existence) with the power to require the production of documents or the answering of questions.
(2)The Ombudsman may refuse to deal with a complaint if the complainant—
(a)made the complaint more than 12 months after becoming aware of the administrative action; and
(b)fails to give a satisfactory explanation for the delay in making the complaint.
15BInvestigation of complaints
Subject to sections 15 and 15A, the Ombudsman may conduct an investigation under this Act on a complaint.
Division 1A—Protected disclosure complaints
15COmbudsman must investigate protected disclosure complaints
Subject to sections 15D and 15E, the Ombudsman must conduct an investigation under this Act on a protected disclosure complaint about conduct by or in an authority or a protected disclosure entity.
15DOmbudsman must refuse to investigate certain protected disclosure complaints
(1)The Ombudsman must refuse to conduct an investigation on a protected disclosure complaint if conducting the investigation would be contrary to section 13AB.
(2)The Ombudsman must refuse to conduct an investigation on a protected disclosure complaint about conduct by or in an authority or a protected disclosure entity unless the Ombudsman is reasonably satisfied that the protected disclosure complaint shows or tends to show that—
(a)the authority or protected disclosure entity or a member, officer or employee of the authority or protected disclosure entity has engaged, is engaging or proposes to engage in improper conduct; or
(b)the authority or protected disclosure entity or a member, officer or employee of the authority or protected disclosure entity has taken, is taking or proposes to take detrimental action against a person in contravention of section 45 of the Protected Disclosure Act 2012.
(3)In this section, improper conduct has the meaning given in section 4 of the Protected Disclosure Act 2012.
15EOmbudsman may refuse to investigate certain protected disclosure complaints
(1)The Ombudsman may refuse to conduct an investigation on a protected disclosure complaint if the Ombudsman considers—
(a)the subject-matter of the protected disclosure complaint is trivial; or
(b)the protected disclosure complaint is frivolous or vexatious; or
(c)the protected disclosure complaint lacks substance or credibility; or
(d)the subject-matter of the protected disclosure complaint has already been investigated or otherwise dealt with by—
(i)an integrity body within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011; or
(ii)any other person or body (whether or not still in existence) with the power to require the production of documents or the answering of questions.
(2)The Ombudsman may refuse to conduct an investigation on a protected disclosure complaint if the person who made the protected disclosure complaint—
(a)made the disclosure that was determined to be a protected disclosure complaint more than 12 months after becoming aware of the disclosed matter; and
(b)fails to give a satisfactory explanation for the delay in making the disclosure.
15FPerson who made protected disclosure complaint to be informed of refusal to investigate
If the Ombudsman refuses to conduct an investigation on a protected disclosure complaint, the Ombudsman, within a reasonable time after receiving the protected disclosure complaint from the IBAC, must inform the person who made the protected disclosure complaint of—
(a) the refusal to conduct the investigation; and
(b) the reason for that refusal.
Division 2—Parliamentary complaints
16Investigations referred by Parliament
(1) At any time—
(a)the Legislative Council or a committee of the Legislative Council;
(b)the Legislative Assembly or a committee of the Legislative Assembly; or
(c) a joint committee of both Houses of Parliament—
may refer to the Ombudsman for investigation and report any matter, other than a matter concerning a judicial proceeding, which that House or committee considers should be investigated by him.
(2)Where a matter is referred to him pursuant to subsection (1), the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon.
Note
Section 25AB provides for the manner of reporting.
Division 2A—Own motion investigations
16AOmbudsman may conduct own motion investigation
(1)Subject to section 13AB and this section, the Ombudsman may conduct an investigation on his or her own motion into any administrative action taken by or in an authority.
(2)The Ombudsman must not conduct an own motion investigation into any administrative action that appears to involve corrupt conduct.
Note
See also section 16D.
(3)The Ombudsman must not conduct an own motion investigation into any administrative action that is taken under the Freedom of Information Act 1982.
(4)The Ombudsman must not conduct an own motion investigation into a matter relating to terms and conditions of employment of persons who are or were employed by or in an authority unless the Ombudsman considers that the matter merits investigation in order to avoid injustice.
(5)If the Ombudsman considers that a person aggrieved by any administrative action taken by or in an authority has or had a right of appeal or referral to, or review by, a tribunal, the Ombudsman must not conduct an own motion investigation into the matter unless the Ombudsman considers that in the particular circumstances—
(a)it would not be reasonable to expect or have expected the person to exercise that right; or
(b) the matter merits investigation to avoid injustice.
(6)If the Ombudsman considers that a person aggrieved by any administrative action taken by or in an authority has or had a remedy by taking proceedings in a court, the Ombudsman must not conduct an own motion investigation into the matter unless the Ombudsman considers that in the particular circumstances—
(a)it would not be reasonable to expect or have expected the person to take those proceedings; or
(b) the matter merits investigation to avoid injustice.
Division 2B—Referred complaints and matters
16BWhat are referred complaints and referred matters?
(1) For the purposes of this Act, a referred complaint is—
(a)a complaint within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 (other than a protected disclosure complaint) referred to the Ombudsman by the IBAC under section 73 of that Act; or
(b)a complaint about any administrative action taken by or in an authority referred to the Ombudsman by another person or body (whether under an Act or otherwise); or
(c)a protected disclosure complaint that the Ombudsman has refused to investigate under section 15D(2).
(2) For the purposes of this Act, a referred matter is—
(a)a notification within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 referred to the Ombudsman by the IBAC under section 73 of that Act; or
(b)a matter referred, or information provided, to the Ombudsman (whether under an Act or otherwise) about any administrative action taken by or in an authority, but not including a matter referred to the Ombudsman under section 16.
16CDealing with referred complaints
(1)The Ombudsman may deal with a referred complaint if it could be made the subject of a complaint under section 14.
(2)The referred complaint is to be dealt with as if it were a complaint under section 14.
(3)Section 15(1) does not apply to a referred complaint that is a complaint within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 referred to the Ombudsman by the IBAC under section 73 of that Act.
16DDealing with referred matters
(1)The Ombudsman may deal with a referred matter if the matter could be made the subject of an own motion investigation.
Note
Section 16A sets out the Ombudsman's power to conduct an own motion investigation.
(2)The referred matter is to be dealt with as if it were an own motion investigation.
(3)Section 16A(2) does not apply to a referred matter that is a notification within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 referred to the Ombudsman by the IBAC under section 73 of that Act.
Division 2C of Part IV Ombudsman Act 1973 is entitled ‘Mandatory notifications by the Ombudsman’. At the relevant time, s 16E required the Ombudsman to notify the Independent Broad-based Anti-corruption Commission (‘IBAC’) of certain things that appeared to involve corrupt conduct (as defined) or police personnel conduct (as defined). Currently, s 16E is expressed somewhat differently, but the basic subject matter is similar.[15] It is desirable to set out subsection (1) of s 16E (as in force at the relevant time) in full:
[15]See now s 63 of the 2016 Act.
16ENotification to IBAC
(1)The Ombudsman must notify the IBAC of the following —
(a)a complaint or referred matter that appears to involve corrupt conduct or police personnel conduct; or
(b)a matter that appears to involve corrupt conduct or police personnel conduct of which the Ombudsman becomes aware in the course of dealing with a complaint, conducting an own motion investigation or performing any other functions under this Act.
Section 16F required the Ombudsman to notify the Victorian Inspectorate of certain matters relating to IBAC personnel or to an Ombudsman officer, an officer of the Victorian Auditor-General’s Office, the Chief Examiner or an Examiner. For present purposes, the current version is not significantly different.[16] Section 16G required, and still requires, the Ombudsman to notify the Freedom of Information Commissioner of a complaint if the complaint could be made the subject of a complaint under Part VIA of the Freedom of Information Act 1982.
[16]See now s 64 of the 2016 Act.
Division 2D of Part IV of the Ombudsman Act 1973, comprising ss 16H to 16K (inclusive), provides, in effect, that the Ombudsman has power to refer a complaint, other than a complaint of certain specified kinds (such as a complaint of corrupt conduct (as defined)), to another person or body specified in Schedule 3 if the Ombudsman considers that the complaint would be more appropriately dealt with by that other person or body. Division 2D was not amended by the 2016 Act.
Division 2E is entitled ‘Information sharing’. At the relevant time, it contained only one section, namely s 16L. At that time,[17] s 16L authorised the Ombudsman to provide or disclose information received or obtained in the course of the Ombudsman’s work to certain persons or bodies if the Ombudsman considered that the information was relevant to their duties or functions. Division 2E now includes, also, s 16M, which gives the Ombudsman additional, albeit qualified, powers to provide or disclose information to the public or to other specified kinds of recipients.
[17]By s 65 of the 2016 Act, the range of persons and bodies to whom the Ombudsman may provide or disclose information under s 16L has been altered, including by the insertion of ss 16L(4) and (5) which relate to the provision of information to a Parliamentary Committee involved in determining whether there has been a breach of parliamentary privilege or contempt of Parliament.
Division 3 of Part IV is entitled ‘Conduct of investigations’. At the relevant time it consisted of ss 17 to 22 inclusive. The Attorney-General placed a degree of reliance on s 17 in his submissions. It is desirable to set out s 17, as in force at the relevant time,[18] in full:
[18]Section 17 has since been amended by s 67 of the 2016 Act so as to insert ss 17(6B)-(6E) which empower or require the Ombudsman to discontinue investigations in specified circumstances. These amendments do not affect the present constructional exercise, in my opinion.
17 Procedure relating to investigations
(1)Before conducting an investigation under this Act, the Ombudsman must inform the following in writing of the Ombudsman's intention to conduct the investigation—
(a)the complainant or the person who made the relevant protected disclosure complaint; and
(b)the principal officer (if any) of the authority or protected disclosure entity to which the investigation relates; and
(c)the responsible Minister (if any) for the authority or protected disclosure entity to which the investigation relates; and
(d)if the investigation relates to a member of staff of a Council or a Councillor, the Mayor of the Council.
(1A)Information given under subsection (1)(a) to a person who made a relevant protected disclosure complaint must include a written statement advising the recipient that it is an offence under section 26FA to disclose the Ombudsman's intention to conduct an investigation.
(1B)The Ombudsman must not inform a person under subsection (1) if doing so would result in information being disclosed that—
(a)is likely to lead to the identification of a person who has made an assessable disclosure; and
(b)is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(2)Every investigation under this Act shall be conducted in private.
(3)Subject to any Rules of Parliament under this Act the Ombudsman is not required to hold any hearing for the purposes of an investigation, and he may obtain information from such persons and in such manner as he thinks fit.
(4)If at any time during an investigation it appears to the Ombudsman that there may be grounds for making a report adverse to an authority or a protected disclosure entity, the Ombudsman must, before making the report, give the principal officer (if any) of the authority or protected disclosure entity the opportunity to comment on the subject-matter of the investigation.
(4A)If at any time during the course of an investigation on a relevant protected disclosure complaint about a Councillor it appears to the Ombudsman that there may be grounds for making a report adverse to the Councillor, the Ombudsman must, before making the report, give the responsible Minister or the Mayor of the relevant Council the opportunity to comment on the subject-matter of the investigation.
(5)The Ombudsman may at any time during or after an investigation (other than an investigation on a relevant protected disclosure complaint about a member of Parliament) consult a Minister who is concerned in the subject-matter of an investigation, and if a Minister so requests or the investigation relates to a recommendation made to a Minister, shall consult the Minister before forming an adverse opinion in relation to the administrative action concerned or, in case of an investigation of a relevant protected disclosure complaint, an adverse opinion in relation to the conduct.
(5A)If an investigation relates to an administrative action taken by a member of staff of a Council or relates to a relevant protected disclosure complaint about conduct of a Councillor or a member of staff of a Council, the Ombudsman—
(a)may, at any time during or after the investigation, consult the Mayor of the Council; and
(b)must, if the Mayor so requests or the investigation relates to a recommendation made to the Council, consult the Mayor before forming an adverse opinion in relation to the administrative action or conduct.
(6)If, during or after an investigation, the Ombudsman considers that there is evidence of a breach of duty or misconduct on the part of an authority or a protected disclosure entity, or a member, officer or employee of an authority or a protected disclosure entity, the Ombudsman must—
(a)report the matter to the principal officer (if any) of the authority or protected disclosure entity; and
(b)send a copy of the report to the responsible Minister and, if the authority or protected disclosure entity is a member of staff of a Council or a Councillor, to the Mayor of the Council.
(6A)The Ombudsman must not disclose any information under subsection (4), (4A), (5), (5A) or (6) that—
(a)is likely to lead to the identification of a person who has made an assessable disclosure; and
(b)is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(7)Subject to this Act and any Rules of Parliament made under this Act the Ombudsman may regulate his procedures on an investigation in such manner as he thinks fit.
Sections 18 to 18G (inclusive) should be noted, although none of the parties referred to any of them. They were not amended by the 2016 Act, except to introduce gender neutral language. By cross-reference to certain (now repealed) provisions of the Evidence (Miscellaneous Provisions) Act 1958, s 18 of the Ombudsman Act 1973 gives to the Ombudsman powers relating to the obtaining of evidence.[19] Persons giving evidence before the Ombudsman retain almost all of the privileges applicable to a witness appearing in a trial in the Supreme Court.[20] Further, s 18 requires the Ombudsman to give advance notice, to a person summoned, of the matters of which the person is to give evidence. Section 18A requires the Ombudsman to report promptly to the Victorian Inspectorate as to the issue of any witness summons, giving reasons for the issue of the summons. Section 18B provides that witness summonses may not be issued to persons under 16 years of age. Section 18C provides that persons summoned or otherwise involved in an enquiry or investigation before the Ombudsman may seek legal advice or representation, subject to certain limited restrictions as to the persons from whom legal advice or representation may be sought. Section 18D requires that, except when prejudice to an investigation may occur, the Ombudsman must give, to a person who is to appear voluntarily, advance notice of the matters in respect of which the person is to be asked questions. Section 18E requires that certain specified information and assistance relating to procedure and confidentiality be given to witnesses in advance of their appearance. Section 18F provides for the audio or video recording of compulsory appearances. Section 18G gives to legal practitioners representing a person at a compulsory appearance the same protection and immunity as in the Supreme Court.
[19]Sections 17, 18, 19, 20 and 20A of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before their repeal on 15 October 2014 as part of the repeal of Division 5 of Part I of that Act, are picked up by s 18(1) of the Ombudsman Act 1973. Notably, the former s 19C (incriminating answers) and the former s 19D (legal professional privilege), which were also contained in Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958, are not picked up by s 18(1) of the Ombudsman Act 1973.
[20]The only exception appears to be journalists’ privilege under Division 1C of Part 3.10 of the Evidence Act 2008: see s 17(2) of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before its repeal on 15 October 2014.
Of the other provisions contained in Division 3 of Part IV, only ss 19, 19A, 19B, 19C and 21 were mentioned in the course of the parties’ submissions and only they are worth setting out here. None of them was amended by the 2016 Act. They read:
19Deliberations of Ministers and Parliamentary committees not to be disclosed
(1)A person shall not be required or authorized by virtue of this Act—
(a) to furnish any information or answer any question; or
(b) to produce or inspect so much of any document—
which relates to the deliberations of Ministers or any committee consisting of Members of Parliament where the committee is formed for the purpose of advising the Ministers in respect of their deliberations.
(2)This section does not apply in relation to an investigation on a relevant protected disclosure complaint.
19ACabinet information not to be disclosed—relevant protected disclosure complaints
In relation to an investigation on a relevant protected disclosure complaint, a person is not required or authorised to—
(a)furnish any information that is Cabinet information; or
(b)answer any question that relates to Cabinet information; or
(c)produce or inspect any document that is Cabinet information.
19BDeliberations of Parliamentary Committees not to be disclosed—relevant protected disclosure complaints
In relation to an investigation on a relevant protected disclosure complaint, a person is not required or authorised to furnish any information or produce or inspect any document or answer any question that relates to any deliberation in private of the following—
(a)a Joint Investigatory Committee or the House Committee, within the meaning of the Parliamentary Committees Act 2003;
(b)a committee of the Legislative Council or Legislative Assembly on a private Bill;
(c)a committee consisting of members of Parliament established by resolution of either the Legislative Council or the Legislative Assembly, or the resolution of both the Legislative Council and the Legislative Assembly.
19CConclusive certificates
(1) The Secretary to the Department of Premier and Cabinet may issue a certificate certifying that—
(a)any information or question or document or part of a document relates to deliberations of Ministers or of a committee referred to in section 19; or
(b) any information or document or part of a document—
(i) is Cabinet information; or
(ii) would, if it existed, be Cabinet information; or
(c) any question relates to Cabinet information; or
(d)any information or question or document or part of a document relates to deliberations in private of a committee referred to in section 19B.
(2) A certificate issued under this section is conclusive of the facts certified.
…
21Entry of premises
(1)For the purposes of conducting an investigation under this Act (other than an investigation on a relevant protected disclosure complaint) the Ombudsman or a member of Ombudsman staff authorised to do so by the Ombudsman may at any reasonable time enter any premises occupied or used by an authority to which this Act applies, and inspect those premises or anything for the time being therein or thereon.
(2)For the purpose of conducting an investigation on a relevant protected disclosure complaint, the Ombudsman or a member of Ombudsman staff authorised to do so by the Ombudsman may at any reasonable time enter any premises occupied or used by an authority or a protected disclosure entity in its capacity as such and inspect those premises or anything for the time being in them or on them.
Division 4 of Part IV is entitled ‘Action on completion of investigations’. It consists of three sections, namely ss 23, 23A and 24. None of those sections was amended by the 2016 Act, except to introduce gender neutral language. It is desirable to set out ss 23 and 23A in full. At the relevant time they provided:
23 Procedure on completion of investigation
(1)Where as a result of an investigation conducted under this Act (other than an investigation conducted under Division 1A or 2) the Ombudsman is of the opinion that the administrative action to which the investigation relates—
(a) appears to have been taken contrary to law;
(b)was unreasonable unjust oppressive or improperly discriminatory;
(c)was in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable unjust oppressive or improperly discriminatory;
(d)was taken in the exercise of a power or discretion, and was so taken for an improper purpose or on irrelevant grounds, or on the taking into account of irrelevant considerations;
(e)was a decision that was made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given;
(f) was based wholly or partly on a mistake of law or fact; or
(g) was wrong—
he shall take action as set out in subsection (2).
(2)Where in a case referred to in subsection (1) the Ombudsman is of the opinion—
(a)that the subject-matter of the investigation should be referred to the appropriate authority for further consideration;
(b)that action could be, and should be, taken to rectify or mitigate or alter the effects of the action to which the investigation relates;
(c)that any practice in accordance with which the action was taken should be varied;
(d)that any law in accordance with which or on the basis of which the action was taken should be reconsidered;
(e) that reasons should be given for the action; or
(f) that any other steps should be taken—
the Ombudsman must report his or her opinion and the reasons for it to the principal officer of the authority or, if there is no principal officer, to the responsible Minister for the authority, and may make any recommendations the Ombudsman thinks fit.
(2A)On completion of an investigation on a relevant protected disclosure complaint (other than a relevant protected disclosure complaint about a member of Parliament) the Ombudsman—
(a) must report the findings of the investigation—
(i)to the principal officer (if any) of the appropriate authority or protected disclosure entity; or
(ii)if there is no principal officer, to the responsible Minister for the authority or protected disclosure entity; or
(iii)if the protected disclosure complaint is about a Councillor, to the Mayor of the appropriate Council; and
(b)may make recommendations as to the action to be taken as a result of the investigation.
(3)If the Ombudsman makes a report or recommendations under subsection (2) or (2A), the Ombudsman—
(a) must send a copy—
(i)to the responsible Minister for the authority or protected disclosure entity (unless the Ombudsman has made the report or recommendations to the responsible Minister under subsection (2)); and
(ii)if the authority is a member of staff of a Council, to the Mayor of the Council; and
(b) may send a copy to the Premier.
(4)Where, under subsection (2) or (2A), the Ombudsman makes recommendations to the principal officer of, or responsible Minister for, an authority or a protected disclosure entity, or the Mayor of the appropriate Council, the Ombudsman may request the principal officer or responsible Minister or Mayor to notify the Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendations or, if no such steps have been or are proposed to be taken, the reasons therefor.
(5)Where it appears to the Ombudsman that no steps that seem to him to be appropriate have been taken within a reasonable time of his making any report or recommendations under subsection (2) or (2A) he may, after considering the comments (if any) made by or on behalf of the principal officer or responsible Minister or Mayor to whom the report or recommendations were made, send—
(a) to the Governor in Council; and
(b)where the report relates to a complaint concerning an administrative action by a member of staff of a Council, to the Mayor of the Council; and
(c)where the report relates to a relevant protected disclosure complaint about a Councillor or a member of staff of a Council, to the Mayor of the Council—
a copy of the report and the recommendations together with a copy of any such comments.
(6)If a copy of any report and recommendations together with a copy of any comments has been sent to the Governor in Council under subsection (5), the Ombudsman may make a report to the Parliament on any of the matters to which the report and recommendations relate that the Ombudsman thinks fit.
(6A)The Ombudsman must not include in a recommendation under subsection (2) or (2A) any information that—
(a)is likely to lead to the identification of a person who has made an assessable disclosure; and
(b)is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
23AReport on investigation—relevant protected disclosure complaints about members of Parliament
On completion of an investigation on a relevant protected disclosure complaint about a member of Parliament, the Ombudsman must report the findings of the investigation—
(a)to the President of the Legislative Council, if the complaint is about a member of the Legislative Council; or
(b)to the Speaker of the Legislative Assembly, if the complaint is about a member of the Legislative Assembly.
Section 24 applies where the Ombudsman has dealt with a ‘complaint’ or a ‘relevant protected disclosure complaint’. It requires the Ombudsman to inform the complainant or the person who made the relevant protected disclosure complaint of the outcome, subject to certain qualifications.
Part V of the Ombudsman Act 1973 is entitled ‘Annual and other reports’. Except in one immaterial respect,[21] and except to introduce gender neutral language,[22] Part V has not been amended by the 2016 Act. For present purposes, s 25AB is the most important of the provisions contained in Part V. Section 25A is also significant. Those sections should be set out in full. They read:
25AB Transmission of section 16 reports
The Ombudsman must send a report under section 16 to—
(a)the President of the Legislative Council, if the matter was referred by the Legislative Council or a committee of the Legislative Council; or
(b)the Speaker of the Legislative Assembly, if the matter was referred by the Legislative Assembly or a committee of the Legislative Assembly; or
(c)the President of the Legislative Council and the Speaker of the Legislative Assembly, if the matter was referred by a joint committee of both Houses of Parliament.
[21]See s 68 of the 2016 Act.
[22]See s 70(4)(f)-(i) of the 2016 Act.
25AContent of reports
(1) The Ombudsman must not include in a report under this Act—
(a)any information that the Ombudsman considers would prejudice any criminal proceedings or criminal investigations, or investigations by the Ombudsman, the IBAC or the Victorian Inspectorate; or
(b)any information, or information in any document, referred to in section 19, 19A or 19B; or
(c)a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit an offence; or
(d)a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence.
(1A)The Ombudsman must not include in a report under this Act any information that—
(a)is likely to lead to the identification of a person who has made an assessable disclosure; and
(b)is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(2)If the Ombudsman intends to include in a report under this Act a comment or opinion that is adverse to any person, the Ombudsman must first give the person a reasonable opportunity to respond to the adverse material and fairly set out the response in the report.
(3)The Ombudsman must not include in a report under this Act any information that would identify any person who is not the subject of any adverse comment or opinion unless the Ombudsman—
(a)is satisfied that it is necessary or desirable to do so in the public interest; and
(b)is satisfied that it will not cause unreasonable damage to the person's reputation, safety or wellbeing; and
(c)states in the report that the person is not the subject of any adverse comment or opinion.
Section 26 provides that ‘Rules of Parliament’ made under the Act may authorise the Ombudsman to publish ‘in the public interest or in the interests of any person authority or other organization’ reports relating generally to the exercise of functions by the Ombudsman or to any case investigated by the Ombudsman.
Part VA is headed ‘Confidentiality’. Division 1 imposes certain confidentiality requirements on the Ombudsman, the Acting Ombudsman and the members of the Ombudsman’s staff. Division 2 empowers the Ombudsman to issue confidentiality notices to third parties requiring them to keep specified matters confidential during the progress of investigations. Division 3 makes it an offence for persons who receive certain kinds of information relating to ‘relevant protected disclosure complaints’[23] to disclose such information except in specified circumstances. The provisions of Part VA were amended in one minor respect by the 2016 Act.[24] Part VA contains various cross-references to the Protected Disclosure Act 2012, the IBAC Act and the Victorian Inspectorate Act 2011. However, no party has submitted before me that those particular cross-references are of any significance for present purposes; and I myself see no present significance in them.
[23]A term defined in s 2 of the Act (see above).
[24]See s 69 of the 2016 Act.
Part VB of the Ombudsman Act 1973 is entitled ‘Oversight of the Ombudsman’. This Part was not amended by the 2016 Act. The Part contains a cross-reference (in s 26G) to the functions of the Victorian Inspectorate in relation to the Ombudsman as set out in the Victorian Inspectorate Act 2011. Part VB also provides (by ss 26H and 26I) for oversight of the Ombudsman by a Parliamentary committee called the Accountability and Oversight Committee.
Part VI of the Ombudsman Act 1973 is headed ‘Miscellaneous’. Apart from the introduction of gender neutral language,[25] Part VI has not been amended by the 2016 Act. The Attorney-General placed some reliance on the terms of s 27, being the very provision under which this proceeding has been brought. Section 27 reads:
[25]See s 70(5)(d) and (6) of the 2016 Act.
27 Application to Supreme Court
(1)Where in the course of an investigation under this Act the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or the party subject to the investigation, may make an application to the Supreme Court for a determination of that question, and on the application the Court may make such order as it considers proper.
* * * * *
(3)For the purposes of this section the principal officer of the authority or protected disclosure entity affected by the investigation shall be deemed to be a party subject to the investigation.
Section 28 provides that letters passing between the Ombudsman and persons in custody are not to be opened by third parties. The Attorney-General referred to this section as being an example of an ‘other’ function conferred on the Ombudsman ‘by or under the Ombudsman Act 1973 or any other Act’, as envisaged in s 13AA(1)(d) of the Act.[26]
[26]Attorney-General’s written submissions dated 8 April 2016, footnote 14.
Section 31 deals with the making of ‘Rules of Parliament’ relating to the Ombudsman. At the relevant time, s 31 provided:
31 Rules of Parliament
(1)Rules of Parliament may be made for the guidance of the Ombudsman in the exercise of his functions and for any other purpose for which Rules of Parliament may be made under this Act.
(2)Subject to this Act the functions of the Ombudsman shall be exercised in accordance with the Rules of Parliament made under this Act.
(3)The Rules of Parliament referred to in this section are Rules that have been agreed upon by both Houses of Parliament in accordance with the Rules and Orders thereof.
(4)Rules of Parliament made under this Act shall be published in the Government Gazette.
Part VII of the Ombudsman Act 1973 contains saving and transitional provisions. It need not be further mentioned.
Schedule 1 of the Act is entitled ‘Specified entities’.[27] It contains in column 1 a list of 38 persons or bodies, they being listed for the purposes of the definition of ‘specified entity’ in s 2(1) of the Act.[28] It will be recalled that the expression ‘specified entity’ is, in turn, used in the definition of ‘authority’ in s 2(1). Each of the persons or bodies listed as a specified entity would appear to be a person or body involved in public administration or law enforcement.
[27]Schedule 1 was not amended by the 2016 Act except for the sake of gender neutral language. See s 70(7)(a) of the 2016 Act.
[28]The list runs from number 1 to number 37, and includes a number 33A.
Schedule 2 of the Act contains a list of ‘exempt persons and bodies’.[29] It will be recalled that the expression ‘exempt person or body’ is defined in s 2(1) to mean a person or body specified in Schedule 2. In turn, the expression ‘exempt person or body’ is used in the definition of ‘authority’, so as to exclude the listed persons and bodies from the coverage of that term. Further, the expression ‘exempt person or body’ is used in s 13AA(3), which, as indicated above, provides:
(3)For the avoidance of doubt, nothing in this Act authorises or requires the Ombudsman to enquire into or investigate anything done or omitted to be done by or in an exempt person or body.
Schedule 2 contains 19 items.[30] Item 7 includes a Victorian court, VCAT and a lengthy list of judicial and quasi-judicial officers. Various other bodies of a legal or quasi-legal kind are also included in Schedule 2, together with police personnel, the Governor, IBAC, the Victorian Inspectorate, a Public Interest Monitor, the Chief Examiner, the Victorian Electoral Commission, the Auditor-General, the Electoral Boundaries Commission and various others associated with these persons or bodies. In addition, as the Attorney-General points out, the list includes (as item 18) ‘A Department of the Parliament’. On the other hand, as the President of the Legislative Council points out, the list does not include a Minister of the Crown or a member of Parliament. I will return to those matters.
[29]Once again, Schedule 2 was not affected by the 2016 Act except to bring in gender neutral language: see s 70(7)(b) of the 2016 Act.
[30]They are numbered from 1 to 18 and include an item 10A.
Finally, Schedule 3 of the Ombudsman Act 1973 contains a list of persons and bodies to whom or to which the Ombudsman may refer complaints as provided for in s 16I of the Act.
The Constitution Act 1975
Since 2003, the position of the Ombudsman has been recognised in,[31] and entrenched by,[32] the Victorian Constitution. In that year, Part VA (entitled ‘Special provisions’) was inserted into the Constitution Act 1975. Part VA contains provisions relating severally to the Ombudsman, the Electoral Commissioner, Victorian electoral boundaries and freedom of information. The position of the Ombudsman is covered by s 94E. It provides:
[31]Constitution Act 1975, s 94E.
[32]Constitution Act 1975, s 18(1B)(o).
94E Independence of the Ombudsman
(1)The Ombudsman appointed in accordance with the Ombudsman Act 1973 is an independent officer of the Parliament.
(2)The functions, powers, rights, immunities and obligations of the Ombudsman are as specified in this section, the Ombudsman Act 1973 and other laws of the State.
(3)There are no implied functions, powers, rights, immunities or obligations arising from the Ombudsman being an independent officer of the Parliament.
(4)The powers of the Parliament to act in relation to the Ombudsman are as specified in the Ombudsman Act 1973.
(5)There are no implied powers of the Parliament arising from the Ombudsman being an independent officer of the Parliament.
(6)Subject to this section, the Ombudsman Act 1973 and other laws of the State, the Ombudsman has complete discretion in the performance or exercise of his or her functions or powers.
(7)The Ombudsman is not to be removed or suspended from office except in accordance with the provisions of sections 3 and 4 of the Ombudsman Act 1973 as in force immediately before the commencement of section 19 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for those sections which have the same effect.
The IBAC Act and the Protected Disclosure Act 2012
It will be recalled that the expression ‘corrupt conduct’ is used in ss 13(1)(a), 13AA(1)(a), 16A(2) and 16E (among others) of the Ombudsman Act 1973 and that the expression is defined in s 2 of that Act to have the meaning given in s 4 of the IBAC Act. At the relevant time, s 4 of the IBAC Act provided:[33]
[33]As from 1 July 2016, as a result of the coming into operation of s 4 of the 2016 Act, s 4 of the IBAC Act was amended so as to extend to the conduct of a person intended to adversely affect the effective performance of a public body or public officer and to result in the person (or an associate) obtaining a benefit that they would not otherwise have obtained. The section was also amended in related or ancillary ways. The amendments to s 4 of the IBAC Act are traceable to the decision of the High Court in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, a case referred to again below.
4 Corrupt conduct
(1)For the purposes of this Act, corrupt conduct means conduct —
(a)of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or
(b)of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or
(c)of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or
(d)of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or
(e)that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c) or (d) —
being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.
(2)Conduct may be corrupt conduct for the purposes of this Act if —
(a)all or any part of the conduct occurs outside Victoria, including outside Australia; and
(b)the conduct would be corrupt conduct if it occurred in Victoria.
(3)This Act does not apply to any conduct of any person that can be considered by the Court of Disputed Returns in proceedings in relation to a petition under Part 8 of the Electoral Act 2002.
It will also be recalled that the expression ‘protected disclosure complaint’ is defined in s 2 of the Ombudsman Act 1973; and that it is used in several other sections of the Act. They include, most relevantly, ss 13AAA, 15C, 15D, 15E, 15F, 16B(1), 17, 23 and 23A. In effect, the expression is defined to mean a disclosure determined by IBAC to be a protected disclosure complaint under s 26 of the Protected Disclosure Act 2012 that has been referred by IBAC to the Ombudsman under s 73 of the IBAC Act. The essential idea of the statutory scheme referred to in the definition of ‘protected disclosure complaint’ is for the IBAC to operate as a clearing house for all ‘assessable disclosures’. In both the Ombudsman Act 1973 and the IBAC Act, ‘assessable disclosure’ is defined to have the same meaning as it has in the Protected Disclosure Act 2012. In s 3 of that Act, ‘assessable disclosure’ is defined to mean, essentially, a disclosure that a relevant entity considers may be a ‘protected disclosure’. The expression ‘protected disclosure’, in turn, is defined in s 3 of the Protected Disclosure Act 2012 as follows:
protected disclosure means —
(a) a disclosure made in accordance with Part 2; or
(b)a complaint made in accordance with section 167(3) of the Victoria Police Act 2013.
As to paragraph (a) of the definition of ‘protected disclosure’, for a disclosure to be made ‘in accordance with Part 2’, it must meet several requirements. First, by virtue of s 9 of the Protected Disclosure Act 2012, it must be made by a natural person and it must be a disclosure of information showing or tending to show ‘improper conduct’ as defined in s 4 of the Protected Disclosure Act 2012 or be a disclosure of information believed on reasonable grounds by the discloser to show or tend to show ‘improper conduct’ as so defined. At the relevant time,[34] ‘improper conduct’ was defined to mean ‘corrupt conduct’ (as defined) or certain other specified kinds of (discreditable) conduct by or relating to a public officer (as defined) or a public body (as defined), being conduct that, if proved, would constitute a criminal offence or reasonable grounds for dismissing or dispensing with, or otherwise terminating, the service of the officer who was, or is, engaged in the conduct. In addition, for a disclosure to be made in accordance with Part 2 of the Protected Disclosure Act 2012 and thus to qualify as a ‘protected disclosure’ within paragraph (a) of the definition in s 3 of that Act, the disclosure has to be made in accordance with the procedure prescribed under the Act.[35] Further, the disclosure is required to be made to one or other of the entities referred to in ss 13 to 19 (inclusive) of the Protected Disclosure Act 2012, as appropriate. As to paragraph (b) of the definition of protected disclosure, s 167(3) of the Victoria Police Act 2013 provides:
Those provisions have a double significance for present purposes. First, they show that, even if, for the time being, there were no statutory provisions outside Part III of the Act which actually conferred additional functions on the Ombudsman, the mere fact that the Act itself recognises the possibility of such provisions is inconsistent with any implicit Parliamentary intention to restrict the operation of any other provision in the Act (such as s 16) by reference to functions specified wholly within Part III. Secondly, the two provisions mentioned make it easier to characterise s 16 as a section which does actually confer an additional, separate function on the Ombudsman.
Despite these difficulties, the Attorney-General (twice) declined to submit that ‘any matter’ in s 16 meant, simply, ‘any matter otherwise within the jurisdiction of the Ombudsman’.[209] No doubt he was concerned, justifiably, that such a submission would be difficult to maintain having regard to the legislative history detailed above, especially in relation to comparisons with the New Zealand legislation. He was also no doubt concerned — again, with justification — that such a submission would readily be characterised as a submission that restrictive words, which were not contained in s 16, should be read into it, being a submission of a kind which is usually difficult to make good.[210] Rather, echoing language he had earlier used to describe the ‘organising principle’ of the Act, the Attorney-General submitted that the scope of s 16 was (implicitly) confined to any matter ‘involving administrative action taken by or in an authority’.[211] Completing his implicit retreat from his original position (that the scope of s 16 was to be measured by the functions and jurisdiction found in Part III), the Attorney-General submitted[212] that, despite the terms of s 13AAA (which is, of course, located within Part III), there was no room for a referral under s 16 of a matter relating to ‘conduct’ by or in a ‘protected disclosure entity’, being conduct that could have been, but had not been, made the subject of a ‘protected disclosure complaint’. Any such matter could only come to the Ombudsman through IBAC and pursuant to an actual protected disclosure complaint, he submitted. At other stages, the Attorney-General’s submissions tended to focus on the legislative provisions relating to exempt persons and bodies, improper and corrupt conduct and protected disclosure complaints, contending that those provisions had the effect that the operation of s 16 was limited in various ways. Ultimately, the Attorney-General concentrated on the particular situation of members of Parliament, contending, in effect, that members of Parliament, at least, were beyond reach under s 16.
[209]Transcript 35, 45.
[210]Thompson v Goold [1910] AC 409; Lowe v The Queen [2015] VSCA 327 [20] (Warren CJ).
[211]Transcript 35.
[212]Transcript 64.
However, since the Attorney-General did not expressly abandon any of his arguments, and because, in any event, statutory construction is a matter for the court, which, subject to considerations of procedural fairness, is not confined to the constructions, or to the arguments as to construction, advanced by the parties to a particular proceeding,[213] I will address each of the arguments that was advanced by the Attorney-General.
[213]Coleman v Power (2004) 220 CLR 1, 93–94 [243] (Kirby J), Pearce & Geddes, Statutory Interpretation in Australia (8th ed, 2014) [1.6].
Already I have said enough to indicate why, in my opinion, s 16 cannot be said to be confined by reference to the functions specified in Part III. Section 13AA(1)(d) of the Act represents a complete answer to that suggestion. I accept the President’s arguments in that respect; and, in my view, s 94E(2) of the Constitution Act 1975 has a parallel effect. Then there are the additional complications and uncertainties, adverted to above, which would be involved in determining whether or not the Ombudsman should be regarded as having special ‘underlying’ jurisdiction (able to be resorted to under s 16) in relation to a matter that could be, but has not been, made the subject of a ‘protected disclosure complaint’ of a kind referred to in s 13AAA. Similar complications and uncertainties would arise in relation to paragraphs (a), (b) and (c) of s 13AA(1).
Even though the Attorney-General shrank from submitting that ‘any matter’ in s 16 means ‘any matter otherwise within the jurisdiction of the Ombudsman’, I should, for completeness, indicate that I would not have accepted such a submission. In my view, to construe s 16 in that way would, in truth, involve reading in words of limitation. Moreover, the construction would involve an insertion that is ‘too big, or too much at variance with the language in fact used by the legislature’.[214] In addition, complications and uncertainties of the kind referred to in the previous paragraph would only be multiplied. There are other indications in the Act that s 16 should not be read down in such a way. Those indications apply equally to the next alternative approach taken by the Attorney-General. So I will deal with them in that context in a moment. Finally, in this regard, I would accept that the legislative history, and especially the comparison with New Zealand, shows that a deliberate choice was made not to include in s 16 words such as ‘any matter otherwise within the jurisdiction of the Ombudsman’. This history supports the view which I would, in any event, have reached by reference to the text, context and purpose of the relevant legislative provisions.
[214]Taylor v Owners-Strata Plan No 11564 (2014) 306 ALR 547, 557 [38]; Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [44].
It follows that I do not accept the Attorney-General’s submission that, for the purposes of s 16, a House or committee of the Parliament can only properly ‘consider’ that a matter should be investigated by the Ombudsman where the matter is otherwise within the jurisdiction of the Ombudsman.
I turn now to the Attorney-General’s reliance on the so-called ‘organising principle’ of the Act, namely ‘administrative action taken by or in an authority’; and to his submission that s 16 should be understood to authorise the referral of, only, a matter ‘involving administrative action taken by or in an authority’.
Of course, this construction would involve an even greater restriction on the scope of s 16 than would the construction originally advanced by the Attorney-General. If the construction originally advanced would involve an insertion that is ‘too big, or too much at variance with the language used by the legislature’,[215] then the same or more could surely be said of this alternative.
[215]See at [217] above.
On the other hand, it is true that the concept of ‘administrative action taken by or in an authority’ pervades much of the Act. And, turning to the language of s 16, it is true also, as the Attorney-General submits, that the word ‘matter’ is protean. It may mean, or connote, many different things, depending on the context. To that extent, I accept that the observations made and the approach taken in Cunneen[216] are applicable here. However, in Cunneen, there was a choice to be made between only two, clearly identified, competing constructions. The history of the arguments in the present case shows that the same cannot be said here.
[216]Cunneen (2015) 256 CLR 1, esp at 28-29 [57]–[59].
Even if that be wrong, it seems to me that there are insufficient indications in the Act that s 16 is to be confined in its operation to matters involving administrative action taken by or in an authority. Moreover, as I will explain shortly, the Act contains compelling indications to the contrary.
As to the Attorney-General’s submissions based on ss 17, 19-19C, 21 and 27, I would merely indicate that I accept entirely the President’s submissions in response thereto.
It would have been a very simple thing for the Parliament expressly to have confined s 16 in the way now suggested. A corresponding course had been taken in many other comparable jurisdictions over some 40 years. The very words required were immediately at hand, in other provisions of the Act itself. The Windsor Hotel matter had exposed the point starkly in 2010/2011. But, even after that, and despite making other extensive amendments to the Act in 2012/2013, Parliament did not insert the words. Indeed, it made no substantive change to the provisions of s 16 at all.
Even more telling, in my view, is what Parliament did do in 2012/2013. Among other things, Parliament substantially altered Part IV of the Act. The heading of the Part remained ‘Investigations’. However, as a result of the 2012/2013 amendments, Part IV now contains numerous provisions that are really of a jurisdictional nature. Indeed, so extensive were the additions of that kind that it might now be said, with some justification, that the essential jurisdictional provisions of the Act are to be found in Part IV to a greater extent than in Part III. Reading the two parts together, Part III now has, in a way, the appearance of an introduction to the Ombudsman’s functions and jurisdiction, whereas Part IV now contains many provisions which are directly operative in relation to the Ombudsman’s jurisdiction and powers. (Incidentally, this change is yet another reason why the Attorney-General’s original constructional submission cannot be accepted.)
In any event, critically, whereas the phrase ‘administrative taken by or in an authority’ was introduced into several comparable provisions in Part IV in 2012/2013, it was not introduced into s 16, even though s 16 is now, as a result of the same amendments, located right in the middle of the largely new Part IV.
As a first example, s 14(1) now provides that certain specified persons may make a complaint to the Ombudsman ‘about an administrative action taken by or in an authority’. Those words had not appeared in the corresponding place in s 14 prior to the 2012/2013 amendments. The jurisdictional nature of the new provisions of Division 1 of Part IV relating to ‘complaints’ is highlighted by s 15B, which provides that, subject to ss 15 and 15A, the Ombudsman ‘may conduct an investigation under this Act on a complaint’.
I turn to own motion investigations. The 2012/2013 amendments introduced a new Division 2A to regulate them. With the subsequent adjustment for gender neutral language, s 16A(1) now provides that, subject to s 13AB and s 16A itself, the Ombudsman may conduct an investigation on the Ombudsman’s own motion into ‘any administrative action taken by or in an authority’. The expression ‘administrative action’ is repeated in subsections (2) and (3) of s 16A. The longer expression (‘administrative action taken by or in an authority’) appears in subsections (5) and (6) of s 16A. Again, s 16A (and especially s 16A(1)) reads as a jurisdictional provision.
Passing to the next component of Part IV of the Act, I note that the insertion of Division 2B (‘Referred complaints and matters’) introduced two entirely new concepts, namely a ‘referred complaint’ and a ‘referred matter’. The provisions of Division 2B are set out in full above. The combined effect of s 16B(1) and s 16C is that the Ombudsman may only deal with a referred complaint if it could be the subject of a complaint under s 14. That, in turn, means that it must be a complaint about ‘an administrative action taken by or in an authority’. Indeed, lest there otherwise be any doubt, s 16B(1)(b) actually uses the expression ‘administrative action taken by or in an authority’ as part of the definition of one of the specified kinds of ‘referred complaint’.
Likewise, the combined effect of s 16B(2) and s 16D is that the Ombudsman may only deal with a referred matter (as defined) if the matter could be made the subject of an own motion investigation. That, in turn, means that the subject matter must be ‘administrative action taken by or in an authority’.[217]
[217]See Ombudsman Act 1973, s 16A(1).
To my mind, it is highly significant that s 16B(2)(b) expressly excludes ‘a matter referred to the Ombudsman under section 16’ from the definition of ‘referred matter’. One consequence of that express exclusion is that s 16D(1), which provides that the Ombudsman may deal with a referred matter if the matter could be made the subject of an own motion investigation (ie, if the matter amounted to or involved ‘administrative action taken by or in an authority’), is caused to have no application to a matter referred under s 16. Hence, as I read these provisions, Parliament has specifically legislated in a fashion that is directly contrary to the proposition advanced by the Attorney-General with which I am presently dealing.
If any further support be needed for the view that the scope of s 16 is not limited to ‘administrative action taken by or in an authority’, it is available from several additional sources.
Firstly, the terms of s 16 appear to be deliberately wide. They commence: ‘At any time’. They speak not of ‘a matter’ but of ‘any matter’. As indicated above, I consider that useful guidance as to the way in which the words ‘any matter’ are used in s 16(1) is available from Brodsky.
Further, s 16 deals explicitly with the question of exceptions. In itself, it provides for one, and only one, exception. As the President submitted, how would the Court be justified in writing into s 16(1) another exception, much less a raft of exceptions?
It is also worthy of note that s 16(2) uses strong language in requiring the Ombudsman to investigate and report on a matter referred. It provides that the Ombudsman ‘shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon’.
Additionally, ever since 1973, special provision has been made in the Act for the way in which the Ombudsman is to report in respect of a referral under s 16. That special provision is now contained in a stand-alone section, s 25AB. Accordingly, investigations on referrals under Division 2 of Part IV (which is wholly comprised of s 16) are specifically excepted from the detailed reporting requirements which are contained in s 23(1). Investigations under Division 1A (Protected disclosure complaints) are similarly excepted from the s 23(1) requirements. Those requirements are, however, applicable to every other kind of investigation under the Act. The expression ‘administrative action taken by or in an authority’ does not appear in Division 1A or Division 2 at all. By contrast, as demonstrated above, all of the other kinds of investigation (ie those to which s 23(1) applies) are confined to ‘administrative action taken by or in an authority’. In relation to the investigations to which it applies, s 23(1) requires the Ombudsman to form an opinion as to whether ‘the administrative action to which the investigation relates’ has one or other of the qualities or features listed in that subsection and, if so, to take action as set out in sub-section (2) of s 23. Such action must include, in the usual case, making contact with the principal officer of the authority. These requirements have been contained in s 23 of the Act from the very beginning. If, as the Attorney-General would have it, the Act as a whole treats s 16 investigations as being not merely capable of extending to ‘administrative action taken by or in an authority’ but as being wholly confined to ‘administrative action taken by or in an authority’, then it is impossible to fathom why s 16 investigations have always been excluded from all of the reporting requirements of s 23.
This brings me to what might be described as the Attorney-General’s in terrorem arguments. He characterised the President’s construction of the Act as ‘unbridled’ in that it allowed for only one exception from the coverage of s 16, namely the exception stated in s 16(1) itself. At some points the Attorney-General seemed really to be contending that, somehow, s 16 just had to be more confined than that. Even if that contention were correct, it would not necessarily follow that the particular limitation suggested by the Attorney-General (that s 16 was limited to ‘administrative action taken by or in an authority’) was appropriately to be inferred. In fact, for the reasons I have already given, I consider that the Act evinces a clear intention that the particular limitation suggested by the Attorney-General is not to be inferred.
Glenister v Dillon[218] falls to be considered here. The parties’ competing arguments about that case are set out in detail above. I accept that what was said about s 16 in Glenister v Dillon was obiter. I accept also that the Act generally is much changed since 1976. On the other hand, s 16 itself is relevantly unchanged. In my view, it is tolerably clear that Menhennitt J, at least, was of the view that s 16 should be interpreted literally and without importing into it any exception other than the stated exception for a matter relating to a judicial proceeding. That emerges most clearly, in my view, from the following sentence in his Honour’s judgment (my emphasis):[219]
[218][1976] VR 550.
[219]Ibid 564.
In the first place, [s 16] impliedly assumes that a matter of administration does not comprehend any aspect of legislative action and therefore it expressly requires the Ombudsman to investigate and report upon any matter referred to him by either arm of the legislature or committees thereof.
It is unnecessary for me to rule on the Attorney-General’s submission that Glenister v Dillon involved error insofar as the Court proceeded by reference to an a priori distinction between legislative, executive and judicial functions of government. On the other hand, I would indicate that I do not accept that the general authority of Glenister v Dillon has been undermined by subsequent cases. In that regard, I would indicate my agreement with the submissions of the President. My final comment in relation to Glenister v Dillon is that respect and weight ought to be given to the view, albeit obiter, of Menhennitt J that, as at 1976, the scope of s 16 was not limited in any of the ways now suggested by the Attorney-General. I note that a learned commentator, writing about the Act as it stood just before the 2012/2013 amendments, has observed that:[220]
If the Ombudsman investigates a matter referred to him or her by Parliament, the Ombudsman shall investigate the matter, even if outside his or her normal jurisdiction (s 16(2) [Ombudsman Act 1973]).
[220]M Frahm, ‘Australia: Victorian Ombudsman’ in International Ombudsman Institute (ed), Australasia and Pacific Ombudsman Institutions: Mandates, Competences and Good Practice (Springer, 2013) 177, 180.
Returning to the current state of the Act, I consider that the Attorney-General’s expressions of alarm, in relation to the proposition that the Act does not operate to restrict s 16 in any way, are overstated. In my view, despite the presence in s 16(2) of the words ‘notwithstanding anything to the contrary in this Act’, it is quite clear that, as between those words and s 13AA(3), the latter should be regarded as the leading provision. Section 13AA(3) is not only a subsequent provision but it reinforces, and, in my view, it extends, the effect of the listing in Schedule 2 of the various ‘exempt persons and bodies’. Moreover, it is a provision that is directed to the very subject matter of the Ombudsman’s jurisdiction over particular persons and bodies. By contrast, the relevant words in s 16(2) have a different and narrower field of operation. Indeed, the Attorney-General may well be correct in his submission that they do no more than establish or confirm that the Ombudsman lacks any discretion to decline to investigate a matter duly referred under s 16(1). Since, in my view, s 13AA(3) applies so as to preclude the Ombudsman absolutely from conducting an investigation in relation to any exempt person or body, it would not be open to a House or committee of the Parliament to refer to the Ombudsman any matter that would involve an investigation of any such person or body.
Although there do not appear to be any other provisions in the Act expressed in a similar, general fashion such as would diminish the Ombudsman’s jurisdiction by precluding absolutely a particular kind of matter from being referred to the Ombudsman under s 16, nevertheless there are numerous provisions in the Act which might, depending on the circumstances, operate to restrict, to an extent or in particular ways, the exercise by the Ombudsman of jurisdiction conferred on her by a referral under s 16. For example, s 13AB would prevent the Ombudsman from carrying out any such investigation in a manner that would prejudice any criminal proceedings, or criminal investigations, or investigations by IBAC or the Victorian Inspectorate[221]. Further, the Act provides for numerous procedural safeguards to protect the interests of persons and bodies who may become involved in investigations conducted by the Ombudsman. An example is that every investigation is to be conducted in private.[222] In addition, the Ombudsman is expressly required by various provisions of the Act to accord, in effect, procedural fairness to persons affected by her investigations.
[221]Arguably, s 15D gives s 13AB jurisdictional effect in relation to protected disclosure complaints in particular.
[222]Ombudsman Act 1973, s 17(2).
As indicated above, I do not accept that the Attorney-General’s submissions on jurisdiction gain anything from his reliance on the reference in s 16(1) to ‘any matter…which that House or committee considers should be investigated by [the Ombudsman]’. On the other hand, it may possibly be the case that neither a House nor a committee would have power to refer a matter that could not reasonably be considered as relevant to its proper business.[223] Of course, there is no suggestion in the present case that the referral of 25 November 2015 extended beyond the proper business of the Legislative Council.
[223]However, the legitimate business of a House of Parliament is potentially very wide indeed: see Egan v Willis (1998) 195 CLR 424, 451 [42] (Gaudron, Gummow and Hayne JJ), 467 [81], 475 [100], 478 [107] (McHugh J), 485 [121] (Kirby J).
As to the suggestion by the Attorney-General that the President’s ‘unbridled construction’ could lead to an overloading of the Ombudsman such that the exercise of her other functions might be detrimentally affected, I note that there has been no more than a handful of parliamentary referrals to the Ombudsman since 1973. In considering the proper construction of the provisions in question, it should not be speculated that the repositories of the power of referral under s 16(1), ie those who have been entrusted by the Parliament with the relevant responsibility, will be inclined to abuse or misuse the power of referral. In so saying, I have read and taken into account what is contained in the post-hearing submissions of the Attorney-General and the President relating to the constitutions and roles of the various Parliamentary committees mentioned. I do not accept the submission of the Attorney-General that according a literal construction to s 16 of the Act would be tantamount to treating a single House of Parliament or a Parliamentary committee as being capable of making new law. Rather, I entirely accept the submission to the contrary made by the President in that regard.
I turn now to the Attorney-General’s submissions based on the references to ‘corrupt conduct’ in Parts III and IV of the Act and on the references to ‘improper conduct’ in related Acts, especially the IBAC Act and the Protected Disclosure Act 2012. (I exclude, for the moment, the Attorney-General’s reliance on those matters as part of his further arguments – dealt with below – based on the provisions relating to protected disclosure complaints and protected disclosure entities). It will be recalled that, at the oral hearing, counsel for the President (the President, in turn, representing the Legislative Council itself) proffered a very short answer to these submissions. He simply disavowed any suggestion that the matter referred on 25 November 2015 involved any allegation of ‘corrupt conduct’ or ‘improper conduct’. As indicated above, in response to that submission by counsel for the President, I referred to the (now discontinued) police investigation into related matters, and I expressed some concern that the Court would be put in an invidious position if it were neither common ground nor obvious that the referral did not involve any allegations of ‘corrupt conduct’ or ‘improper conduct’. Of course, I made those remarks in open court. Plainly, they were made for the consideration of all parties. Subsequently, the Attorney-General made his oral reply to the President’s oral submissions. During his reply, the Attorney-General made no reference at all to this point. Nor did he deal with it in writing or in any other way. Accordingly, I consider that I should proceed on the basis that it is common ground that neither ‘corrupt conduct’ nor ‘improper conduct’ is alleged.
In my view, that disposes of the Attorney-General’s submissions in this particular regard. It is neither necessary nor desirable for me to express any view as to whether, in a case where a purported referral under s 16 did allege ‘corrupt conduct’ or ‘improper conduct’, the referral would be outside jurisdiction by reason of an implication that the stated exceptions relating to such conduct extend to s 16. In my view, the Attorney-General’s submissions relating to ‘corrupt conduct’ and ‘improper conduct’ do not support, or even bear upon, his contention that s 16 should be regarded as limited to ‘administrative action taken by or in an authority’.
This brings me to the last remaining group of submissions made by the Attorney-General. In essence, he contended that under no circumstances could there be a valid referral under s 16 of a matter relating to the conduct of a member of Parliament.
Insofar as that submission is based on the theory that s 16 is confined to ‘administrative action taken by or in an authority’, I reject it for the reasons already given.
Insofar as the submission is based on the existence in the Act of the provisions relating to protected disclosure complaints and protected disclosure entities, I reject it for the following reasons.
The particular provisions in question had no counterpart in the Act until they were introduced as part of the 2012/2013 amendments. It follows from what I have already written that my view is that, at least until those amendments were made, there was no basis for contending that members of Parliament were outside the scope of s 16.
I do not accept that the provisions relating to protected disclosure complaints and protected disclosure entities are in a form sufficient to indicate that they should be treated as exhaustive of the capacity of the Ombudsman to investigate the conduct of members of Parliament, such that any referral of such conduct under s 16 would no longer be open to a House or a committee of the Parliament.
The provisions do not contain any real indication that Parliament considered the Ombudsman to be no longer a suitable or appropriate person to investigate members of Parliament. Quite the opposite. The provisions plainly envisage, in fact, that the Ombudsman will investigate members of Parliament, at least in the circumstances specified in those provisions.
The specified circumstances involve a referral from IBAC of a ‘disclosure’ determined under s 26 of the Protected Disclosure Act 2012 to be a ‘protected disclosure complaint’. The Protected Disclosure Act 2012 is the successor of the Whistleblowers Protection Act 2001. As the names of those two Acts suggest, the principal concern of each of them was or is with persons who witness or suffer from ‘improper conduct’ (as defined) or ‘corrupt conduct’ (as defined) and who may need encouragement and protection from reprisals or other consequences before they will report what they have witnessed to the appropriate authorities.[224] The elaborate substantive and procedural provisions of the Protected Disclosure Act 2012 and of the interconnected sections of the IBAC Act and the Ombudsman Act 1973 reflect the complex nature of the problems posed by such situations.
[224]See, for eg, Protected Disclosure Act 2012, s 1 (Purposes).
However, many other persons who have witnessed or suffered from ‘improper conduct’ or ‘corrupt conduct’ may have no reluctance to report the same, openly, to the authorities. Indeed, s 20 of the Protected Disclosure Act 2012 itself provides, in effect, that a disclosure will not be covered by the Act if, at the time the disclosure is made, the person making it expressly states in writing that the disclosure is not a disclosure for the purposes of the Act.
Further, at the relevant time, as indicated above, the definitions of ‘improper conduct’ and ‘corrupt conduct’ were such as to confine those concepts to criminal offences or to conduct amount to grounds for terminating the service of an officer. There will be many cases, of which the present case is apparently one, where a person or body may wish to raise less serious matters in relation to a member or members of Parliament, and to do so publically or at least openly. Other members of Parliament are indeed a good example. All members of Parliament, of course, enjoy complete immunity for anything they say in the public forum of Parliament.
It would be rather odd to treat the provisions relating to protected disclosure complaints, which are designed to deal with particular situations only, as implicitly covering the field so far as the relationship between the Ombudsman and members of Parliament is concerned. It is difficult to attribute to Parliament an intention that IBAC should be involved not only in situations of the kind envisaged by the Protected Disclosure Act 2012, but in every situation in which someone wants to raise a matter relating to the conduct of a member or members of Parliament. Indeed, even where a person wishes to make a ‘protected disclosure’ about a member of Parliament, the combined effect of ss 19 and 21(3) of the Protected Disclosure Act 2012 is that the disclosure must be made to the relevant Presiding Officer, not to IBAC, and the relevant Presiding Officer will then possess a discretion not to refer it to IBAC.
This view is also supported by s 16E of the Ombudsman Act 1973. The broad effect of that section as a whole (as in force at the relevant time) is summarised above and s 16E(1) (in particular) is set out in full. Section s 16E(1) has a dual significance. Firstly, it confines the obligation of the Ombudsman to notify IBAC to cases of corrupt conduct and police personnel conduct. Second, it assumes that the Ombudsman may become aware of a matter that appears to involve corrupt conduct while dealing with a complaint, conducting an own-motion investigation or ‘performing any other functions under this Act’. The reference to ‘any other functions under this Act’ would seem to cover the function of dealing with a matter referred under s 16 of the Act.
Accordingly, the Attorney-General’s reliance on Anthony Hordern[225] is misplaced. Rather, the present case is comparable with Nystrom[226] in which it was held that the two statutory powers in question were both available to the relevant Minister. The powers were separately sourced, they involved different subject matters and their exercise involved different consequences. The same applies here.
[225](1932) 47 CLR 1.
[226](2006) 228 CLR 566.
It follows that none of the matters relied upon by the Attorney-General prevent the referral to the Ombudsman of a matter relating to the conduct of a member or members of Parliament.
Finally, I accept the submission of the President that, for the purposes of construing the relevant provisions of the Act, it is unnecessary and inappropriate to consider whether or not, in the exercise of her function of conducting an investigation pursuant to the referral under s 16, the Ombudsman may be confronted with a question relating to parliamentary privilege. As the President submits, it is a matter for the relevant House or for the member or members of Parliament concerned to raise any privilege point.[227] In any event, I note that the Attorney-General has not suggested that parliamentary privilege would stand in the way of each and every part of investigation that the Ombudsman would be called upon to conduct pursuant to the referral of 25 November 2015.
[227]Barber v State of Victoria [2012] VSC 554 [38] (Emerton J).
Conclusion and orders
For these reasons, I propose to make a determination pursuant to s 27 of the Ombudsman Act 1973 in the following terms or to the following effect:
The Victorian Ombudsman has jurisdiction under s 16(2) of the Ombudsman Act 1973 to conduct an investigation pursuant to the referral from the Legislative Council made on 25 November 2015.
I will hear the parties in relation to costs and in relation to any other orders sought.
Amendment of section 13A—Conducting of enquiries
(1) In section 13A(1) of the Ombudsman Act 1973—
(a) in paragraph (a) omit ‘(other than an investigation on a protected disclosure complaint)’;
(b) in paragraph (b), after ‘matter’ insert ‘(other than a protected disclosure complaint)’.
(2)In section 13A(3) of the Ombudsman Act 1973, after ‘authority’ insert ‘or a protected disclosure entity’.
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