The Attorney-General for the State of Victoria v Deborah Glass (in Her Capacity as Ombudsman for the State of Victoria) and the President of the Legislative Council
[2016] VSCA 306
•9 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0133
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Applicant |
| v | |
| DEBORAH GLASS (IN HER CAPACITY AS OMBUDSMAN FOR THE STATE OF VICTORIA) | First Respondent |
| and | |
| THE PRESIDENT OF THE LEGISLATIVE COUNCIL | Second Respondent |
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| JUDGES: | WARREN CJ, BEACH and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 November 2016 |
| DATE OF JUDGMENT: | 9 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 306 |
| JUDGMENT APPEALED FROM: | [2016] VSC 507 (Cavanough J) |
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ADMINISTRATIVE LAW – Ombudsman – Jurisdiction – Jurisdiction and functions of Ombudsman – Investigation – Investigation of matter referred by Legislative Council – Whether matter referred within Ombudsman’s jurisdiction – Ombudsman Act 1973 s 16.
STATUTES – Statutory interpretation – Construction of s 16 of the Ombudsman Act 1973 – Meaning – Meaning of ‘any matter’ in s 16 of the Ombudsman Act 1973 – Whether ‘any matter’ in s 16 means ‘any matter otherwise within the functions and jurisdiction of the Ombudsman’ – Statutory text – Context and purpose of enactment – Statutory scheme – Ombudsman Act 1973 ss 13, 13AAA, 13AA, 14, 15, 15A, 15B, 16A, 16B, 16C, 16D, 17, 18, 19, 19A, 19B, 19C, 21 and 25AB – Freedom of Information Act 1982 – Independent Broad-based Anti-corruption Commission Act 2011 – Protected Disclosure Act 2012.
WORDS AND PHRASES – ‘Any matter’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R M Niall QC S-G with Ms J Watson | Victorian Government Solicitor’s Office |
| For the First Respondent | Dr K P Hanscombe QC with Ms F L McKenzie | Victorian Ombudsman |
| For the Second Respondent | Mr P J Hanks QC with Ms F I Gordon | Lander & Rogers |
WARREN CJ
BEACH JA
FERGUSON JA:
On 25 November 2015, the Legislative Council of the Parliament of Victoria passed the following motion:
Pursuant to s 16 of the Ombudsman Act 1973, this House refers the following matter to the Ombudsman for investigation and report:
(1)allegations that ALP members of the Victorian Parliament misused Members’ staff budget entitlements, against the provisions of the Parliament of Victoria Members Guide, that is, ‘Electorate Officers are employees of the Parliament of Victoria, and are directly accountable to the Member in whose electorate office they work … These positions are provided to support the Member in their parliamentary and electorate duties. The Parliament does not fund positions to support the Member’s political or party duties’; and
(2)any other breach of applicable policies, laws or codes in relation to these allegations.
This proceeding concerns the question of whether the Ombudsman has jurisdiction to carry out the investigation of the matter referred to her by the Legislative Council. That question falls to be determined by the proper construction and operation of s 16 of the Ombudsman Act 1973 (‘the Act’), or more particularly the meaning of the words ‘any matter’ in that section. At the time of the referral, s 16 provided:
16 Investigations 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 the Ombudsman pursuant to subsection (1), he 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.[1]
[1]Since the referral, s 16 of the Act has been amended to make its language gender neutral.
The proceeding at first instance
On 29 January 2016, the Victorian Ombudsman filed an ex parte application, pursuant to s 27 of the Act, seeking a determination as to whether or not she had jurisdiction to carry out an investigation pursuant to the referral made to her by the Legislative Council on 25 November 2015. On 7 March 2016 orders were made joining the President of the Legislative Council of Victoria and the Attorney-General for the State of Victoria as defendants to the Ombudsman’s proceeding.
Over two days in May 2016, a judge of the Trial Division heard the Ombudsman’s application as to whether she had jurisdiction under s 16 of the Act to conduct the investigation referred to her. At trial, the President of the Legislative Council submitted that the Ombudsman had the necessary jurisdiction and the Attorney-General submitted that the Ombudsman did not have the necessary jurisdiction. The Ombudsman filed submissions identifying arguments both in favour of and against her having the relevant jurisdiction, but at trial took a neutral position on the issue.
On 26 August 2016, the judge made an order that it be determined under s 27 of the Act that the Ombudsman had jurisdiction to investigate the matter referred to her by the Legislative Council. In his reasons for judgment, the judge construed s 16 as allowing the Parliament to refer ‘any subject matter that may be chosen for inquiry’,[2] subject only to the express limitations in ss 16 and 13AA(3).[3]
[2]Glass v President of the Legislative Council [2016] VSC 507, [210] (‘Reasons’).
[3]Reasons [239]–[240].
The Attorney-General has sought leave to appeal from the judge’s order. In his application for leave to appeal, which was heard at the same time as the appeal, the Attorney-General relied upon a single ground of appeal as follows:
1.The trial judge erred in determining that the Ombudsman has jurisdiction under s 16(2) of the Ombudsman Act 1973 (Vic) to conduct an investigation pursuant to the referral from the Legislative Council made on 25 November 2015.
The parties’ positions in this Court
In this Court, the Attorney-General submitted that the judge erred in the manner in which his Honour construed s 16(1) of the Act in:
(a) proceeding on the basis that the words ‘any matter’ in s 16(1) should be given their broadest possible meaning, and then looking to sequentially exclude contextual indications which would imply that ‘any matter’ should be given a more narrow and focussed meaning; and
(b) construing the words ‘any matter’ by reference to terms used in a different statutory context.
The Attorney-General submitted that s 16, properly construed by reference to the text, purpose and context of the Act, the broader relevant legislative framework, and the system of general law relating to responsible government and parliamentary privilege, only permitted the referral of matters that were otherwise within the functions and jurisdiction of the Ombudsman.[4] The broader legislative framework referred to by the Attorney-General was said to include the provisions of the Independent Broad-based Anti-corruption Commission Act 2011 (‘the IBAC Act’), the Protected Disclosure Act 2012 and the Freedom of Information Act 1982.
[4]But see the judge’s observation at Reasons [214] that, in the course of argument at first instance, ‘the Attorney-General (twice) declined to submit that “any matter” in s 16 meant, simply, “any matter otherwise within the jurisdiction of the Ombudsman”’.
On the other hand, the President of the Legislative Council submitted that the judge was correct to hold that the Ombudsman had jurisdiction to investigate the referred matter because:
(c) properly construed, s 16 is an additional and independent source of investigative power: an additional power expressly contemplated by pt III of the Act and an independent power not limited by the provisions of that part;
(d) the implied limit advanced by the Attorney-General is inconsistent with the plain and ordinary language of s 16 and the history of the Act; and
(e) none of the contextual matters advanced by the Attorney-General supported reading into s 16 an implied limit of the kind suggested.
The Ombudsman did not respond to or contest the Attorney-General’s application for leave to appeal. The Ombudsman, apart from making a short submission about factual matters, attended the hearing in this Court in order to assist the Court if required.
The Ombudsman Act 1973
In his reasons for judgment, the trial judge provided a detailed description of the provisions of the Act.[5] As was observed by the judge, it is the provisions in pts I, III, IV and V which are the most relevant in this proceeding. As the judge also observed, the Act in force at the time of the referral by the Legislative Council was in a slightly different form from the current version of the Act. The differences, in part, concern amendments made since 25 November 2015 for the purpose of making the provisions of the Act gender neutral. The judge found, and the parties before us did not dispute, that the changes that have been made to the language of the provisions since 25 November 2015 did not alter the construction and operation of the provision of the Act that are relevant for determining the issues in dispute in this proceeding.
[5]Reasons [15]–[42].
Part I of the Act is entitled ‘Interpretation’. It contains a definition section, s 2. At the time of the referral, s 2 of the Act relevantly provided:
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;
…
Part III of the Act is entitled ‘Functions and jurisdiction of the Ombudsman’. Part III contains ss 13, 13AAA, 13AA, 13AB and 13AC. At the time of the referral, those sections provided:
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.
Part IIIA of the Act is entitled ‘Enquiries’. It contains two sections, ss 13A and 13B. Section 13A(2) provides that the Ombudsman may conduct ‘an enquiry either on his or her own motion or as a consequence of a complaint under s 14, a referred complaint or a referred matter’.
Part IV of the Act is headed ‘Investigations’. Part IV is divided into 10 divisions (divs 1, 1A, 2, 2A, 2B, 2C, 2D, 2E, 3 and 4) and contains ss 14-24 of the Act. Division 1 of pt IV contains ss 14, 15, 15A and 15B. At the time of the referral, s 14(1) of the Act relevantly provided:
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.
Sections 15, 15A and 15B of the Act provided:
15 Ombudsman 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.
15A Ombudsman 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 Act2011; 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.
15B Investigation of complaints
Subject to sections 15 and 15A, the Ombudsman may conduct an investigation under this Act on a complaint.
Section 16 of the Act,[6] the construction of which is critical to the resolution of this proceeding, is contained in its own division, headed ‘Division 2 — Parliamentary complaints’.
[6]See [1] above.
Provisions in respect of own motion investigations, referred complaints and referred matters are contained in divs 2A and 2B of pt IV. Division 2A contains s 16A and div 2B contains ss 16B–16D. At the time of the referral, ss 16A–16D provided:
16A Ombudsman 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
16B What 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.
16C Dealing 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.
16D Dealing 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.
Divisions 2C, 2D and 2E of pt IV contain provisions dealing with mandatory notifications by the Ombudsman, the referral of complaints by the Ombudsman to other persons or bodies and information sharing. Sections 16E–16G (in div 2C) concern the circumstances in which the Ombudsman must notify IBAC, the Victorian Inspectorate and the Freedom of Information Commissioner of certain complaints. Section 16I (contained in div 2D) provides for the referral of complaints by the Ombudsman to a person or body specified in sch 3 of the Act. Amongst the persons and bodies to whom the Ombudsman may refer complaints are the Auditor-General, the Chief Commissioner of Police, the Director of Public Prosecutions, IBAC and the Victorian Inspectorate.
Division 3 of pt IV is entitled ‘Conduct of investigations’. It contains ss 17–22. At the time of the referral, s 17 provided:
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.
Section 18 of the Act deals with certain evidentiary matters, including giving the Ombudsman power to issue witness summonses.
Of the other provisions contained in div 3 of pt IV, ss 19, 19A, 19B, 19C and 21 are of the most significance. At the time of the referral, those sections provided:
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.
Part V of the Act is entitled ‘Annual and other reports’. Part V contains a number of provisions concerning reports to be made by the Ombudsman. Section 25AB requires the Ombudsman to send a report in respect of an investigation commenced pursuant to s 16 of the Act 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.
Section 25A of the Act provides that the Ombudsman must not include in any report under the Act any information that the Ombudsman considers would prejudice any criminal proceedings or criminal investigations, or investigations by the Ombudsman, IBAC or the Victorian Inspectorate.
The legislative history of the Ombudsman Act 1973
In its original form pts III and IV of the Ombudsman Act were respectively headed ‘Functions and Jurisdiction of the Ombudsman’ and ‘Investigations’, as they are so headed today. Section 16, as originally enacted, is relevantly identical to the current version of s 16. In the last 43 years, two amendments have been made to s 16. On 10 February 2013, the reporting requirements originally enacted in s 16(3) were moved to s 25AB by the enactment of ss 230 and 242 of the Integrity and Accountability Legislation Amendment Act 2012 (‘the 2012 Act’); and, in May this year, s 16 was amended to replace the word ‘him’ with the words ‘the Ombudsman’ (where twice occurring).
In the Second Reading Speech for the 1973 bill for the Ombudsman Act, the Attorney-General, Sir George Reid, referred to div 2 of pt IV, comprising s 16, in the following terms:
Division 2, comprising s 16, will also be of interest to honourable members for it sets out what is virtually a separate function of the Ombudsman — that of investigating and reporting on any matter referred to him by either House of Parliament, a committee of either House of Parliament or a joint committee of both Houses of Parliament.[7]
[7]Hansard, Parliamentary Debates, Legislative Assembly, Vol 361, 20 March 1973, 4201.
Additionally, in his Second Reading Speech, the Attorney-General said that the corresponding New Zealand legislation, the Parliamentary Commissioner (Ombudsman) Act 1962 (NZ) (‘the NZ Act’), was, ‘with some differences’, ‘broadly speaking, the prototype of the Bill [then] before [the] House.[8] At the time of the Second Reading Speech, s 11(3) of the NZ Act relevantly provided:
… any Committee of the House of Representatives may at any time refer to the Commissioner, for investigation and report by him, any petition that is before that Committee for consideration, or any matter to which that petition relates. In any such case, the Commissioner shall, subject to any special directions of the Committee, investigate the matters so referred to him, so far as they are within his jurisdiction, and make such report to the Committee as he thinks fit. … [9]
At first instance, as part of her ‘pro-jurisdiction analysis’, the Ombudsman submitted that it might be assumed that the Victorian Parliament considered and rejected the possibility of including the phrase ‘so far as they are within his jurisdiction’, or any like phrase, because such a jurisdictional limitation was not in fact enacted in 1973, or indeed at any time thereafter.[10]
[8]Ibid 4199.
[9]Emphasis added.
[10]See further, Reasons [53]–[56].
In Glenister v Dillon,[11] the Full Court had to determine whether a proposed investigation by the Ombudsman into complaints made by two people in custody was within the Ombudsman’s jurisdiction. In obiter, Menhennitt J said:
Having regard to all of the provisions of the Act, for the reasons given by Gillard J, whose reasons for judgment I have had the opportunity of reading, I am of the opinion that, in the context, ‘administration’ refers to the executive arm of government in contradistinction to the legislative and judicial arms of government. This conclusion is strongly supported by the provisions of s 16 of the Act. The Ombudsman having been given by s 13 jurisdiction to investigate administrative action, that is acts or omissions in the executive arm of government but not in the legislative or judicial arms of government, the Ombudsman is then by s 16 directed to investigate and report upon any matter referred to him by the Legislative Council or the Legislative Assembly or a committee of either House or a joint committee of both Houses, other than a matter concerning a judicial proceeding. This provision has a double significance. In the first place, it 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. In the second place, there is expressly excluded from the matters which may be so referred a matter concerning a judicial proceeding, thereby confirming the concept that a matter of administration is a matter that relates to the executive arm of government but not the judicial arm.[12]
[11][1976] VR 550 (‘Glenister’).
[12]Glenister [1976] VR 550, 564 (emphasis in original).
Significant amendments were made to the Act by pt 7 of the 2012 Act. Section 1 of the 2012 Act provides that the main purposes of the 2012 Act were, amongst other things, to amend the IBAC Act, the Victorian Inspectorate Act 2011 and the Ombudsman Act. In addition to making amendments to those Acts, the 2012 Act also made amendments to the Freedom of Information Act.
As we have already noted, the 2012 Act moved the reporting requirement previously contained in s 16(3) of the Act to a new section, s 25AB. In addition, the 2012 Act substituted s 13 of the Act with a new s 13 and inserted ss 13AA and 13AB; substituted for the former div 1 of pt IV a new div 1; inserted new divs 2A–2E (containing ss 16A–18G) in pt IV; and inserted a new part, pt VA. Sections 19A, 19B, 19C and 21(2) were inserted into the Act by ss 158 and 159(2) of the Protected Disclosure Act, again on 10 February 2013.
In oral argument, it was submitted on behalf of the Attorney-General that the suite of amendments made by the 2012 Act and companion provisions enacted in the Protected Disclosure Act set up a comprehensive scheme for the investigation of integrity related issues. In argument, we were taken to the Second Reading Speeches for the Bills that became the 2012 Act and the Protected Disclosure Act. Reference was made to those parts of the relevant speeches that were said to disclose that the purpose of the Parliament was to enact a new, comprehensive, coordinated and coherent integrity system for Victoria with a ‘clarity around jurisdictional boundaries’ that would ensure that investigations were ‘undertaken by the body whose functions and powers are most appropriate in each circumstance’. The Second Reading Speech for the 2012 Act contained a statement that the 2012 Act would ensure that IBAC and the Ombudsman would have clearly defined roles and responsibilities.[13]
[13]Hansard, Parliamentary Debates, Legislative Assembly, Vol 506, 14 November 2012, 4976–4980. See further, the second reading speech for the Protected Disclosure Bill 2012: Hansard, Parliamentary Debates, Legislative Assembly, Vol 506, 14 November 2012, 93–100.
On the other hand, in response to these submissions, it was submitted on behalf of the President of the Legislative Council that, notwithstanding the raft of amendments that were made to the Act by the 2012 Act, including the specific amendment to s 16 to move the reporting requirements from s 16(3) to s 25AB, the Parliament did not amend what was said to be the wide power given to the Houses of Parliament and their committees to refer any matter to the Ombudsman for investigation and reporting thereon. The President of the Legislative Council relied in particular on the fact that even though s 16 had been the subject of a specific amendment as part of the suite of amendments and enactments relied upon by the Attorney-General, the Parliament did not see fit to amend s 16 to confine its width.
The judge’s reasons
In careful and detailed reasons, the judge set out the competing positions of the parties at first instance. The judge noted what he observed to be changes in the Attorney-General’s case.[14]
[14]Reasons [212]–[215].
The judge observed that although the submissions of the parties had ranged far and wide before him, the fundamental question with which he was required to deal was the question set out in the originating motion, namely ‘whether or not [the Ombudsman] has jurisdiction to carry out an investigation pursuant to the referral made by the Legislative Council of Victoria on 25 November 2015’.[15]
[15]Ibid [205].
The judge commenced his analysis of the issue in dispute by accepting that the Court ‘must not start by assuming the words in s 16 are used in their broadest possible sense (and only then go on to consider whether or not that sense is excluded by contextual indications)’.[16] The judge then said:
[16]Ibid [207].
Given that the fundamental question before the Court is whether the particular referral was in order, it is not inappropriate to consider at the outset what might be the ordinary meaning of the phrase ‘any matter’ when used in comparable contexts, as distinct from assuming that the phrase is used in its broadest possible sense. In my view, some guidance as to the ordinary meaning of the phrase ‘any matter’ (in comparable contexts) is available from a decision of the High Court in The Queen v Thomas; ex parte Brodsky.
In Brodsky, the Court was hearing a challenge to the jurisdiction of a Medical Services Committee of Inquiry established under the National Health Act 1953-1962 (Cth). The prosecutor was a medical practitioner with whom the Commonwealth had entered into an agreement for the provision of medical services to pensioners pursuant to that Act. The Committee had authority under s 111 of the Act to inquire into and report to the Minister or the Director-General of Health on ‘any matter’ referred to the Committee by the Minister or the Director-General in respect of or arising out of the services or conduct of medical practitioners in connection with the provision of medical services under the Act. Where ‘a matter’ referred to a Committee concerned the conduct of a medical practitioner, the chairman of the Committee was required by s 125(1) of the Act to cause notice in writing of the matter so referred, and of the time and place at which the Committee intended to hold an inquiry into the matter, to be given to that medical practitioner at least ten days before the date of the inquiry. The prosecutor contended that an inquiry relating to him upon which the Committee proposed to embark was beyond its powers for the reason that the subject to be inquired into was not a ‘matter’ in the sense in which the word was used in ss 111 and 125 of the Act, and therefore could not be validly referred to the Committee or inquired into by it. The prosecutor invited the Court to give the word the meaning which it had in ss 75 to 78 of the Commonwealth Constitution, under which the test of a ‘matter’ is a claim of right, so that ‘matter’ means a subject-matter for determination in a legal proceeding. The Court, consisting of Kitto, Menzies and Windeyer JJ, rejected that submission. Their Honours said:
We can see no ground in the language, the context or the subject-matter of [ss 111 and 125 of the National Health Act 1953-1962 (Cth)] for giving to the word as there used any precision of meaning at all. Indeed it seems chosen for the sake of that vagueness which reserves all definition to be the function of super-added descriptive words. It is often used in this manner as merely equivalent to ‘things’ or ‘something’, especially, as the Oxford English Dictionary observes, with qualifying words, ‘things or something of a specified kind, involving or related to a specified thing’. Accordingly, in our opinion, the expression ‘any matter’ in ss 111 and 125, has the width of meaning it has, for example, in s 1A of the Royal Commissions Act 1902-1933 (Cth), where it is used as a comprehensive term to refer to any subject of inquiry (the expression used by the Privy Council in Attorney-General for the Commonwealth v Colonial Sugar Refining Co Ltd that is to say, any subject matter that may be chosen for inquiry (see the language of Fullagar J in Lockwood v The Commonwealth).
I acknowledge immediately that it was not suggested in Brodsky that there was any statutory regime equivalent to what the Attorney-General has described as the ‘very carefully calibrated’ integrity regime which, he says, emerges from the various statutory provisions on which he relied. Further, I accept the submission of the Attorney-General that, for the purposes of interpretation of the relevant provisions, primary attention must be given to the current state of the legislation, as incorporating all amendments.
Nevertheless, at first sight, at least, the expression ‘any matter’ in s 16(1) of the Ombudsman Act 1973 appears to be used in the same sense in which it was held to have been used in the legislation under consideration in Brodsky, ie in the sense of ‘any subject matter that may be chosen for inquiry’. It is true that that is a very broad concept. However, it is difficult to think of any more narrow meaning which the expression ‘any matter’ might ordinarily bear in the context of a statute providing for one body to refer an unspecified thing to another body for investigation. Prima facie, what was referred to the Ombudsman in the present case was a ‘matter’ in this sense. Accordingly, in practical terms, I consider that it falls to the Attorney-General to identify reasons why the particular subject matter purportedly referred in the present case was outside the scope of s 16(1). Consistently with this, by the consent of the parties, the Attorney-General went first with his submissions at every stage of this case. Further, in my opinion, it is necessary to concentrate on the question whether the particular subject matter that was described in the referral of 25 November 2015 was or was not within the scope of s 16, and not to become distracted by an endeavour to identify limitations on the scope of s 16 that might stand in the way of a referral different from the referral in question.[17]
[17]Ibid [207]–[210] (citations omitted).
The balance of the reasons dealt with each of the various arguments that had been put by the Attorney-General in support of the construction for which he contended. In respect of each argument, the judge gave reasons why he found the Attorney-General’s submission to be unpersuasive.[18] Having regard to the issues raised by the Attorney-General in this Court, it is not necessary for us to set out all of the detail of the reasons given by the judge in his analysis. We will deal below with those parts of the judge’s reasoning that are relevant to the complaints the Attorney-General makes in this Court.
[18]Ibid [211]–[258].
The complaints made by the Attorney-General in this Court
The Attorney-General submitted that the ‘primary error’ made by the judge was ‘to proceed on the basis that “any matter” should be used in its broadest possible sense and then to sequentially exclude contextual indications which would imply that “any matter” should be given a more narrow and focused meaning’. It was said that in taking this approach, the judge ‘inverted proper processes of construction’.
It was also asserted that the judge made a ‘significant error’ in relying upon R v Thomas; Ex parte Brodsky[19] to guide the way in which ‘any matter’ in s 16 should be construed. Moreover, it was submitted that, in any event, Brodsky was not authority for the proposition that ‘any matter’ should be construed as meaning ‘any subject matter that may be chosen for inquiry’.[20]
[19](1963) 109 CLR 434 (‘Brodsky’).
[20]Reasons [210].
These submissions must be rejected. So far as the so-called primary error made by the judge is concerned, it should immediately be noted that the judge commenced his analysis by accepting the proposition that ‘the Court must not start by assuming that the words of s 16 are used in their broadest possible sense (and only then go on to consider whether or not that sense is excluded by contextual indications)’.[21]
[21]Ibid [207].
As the High Court has repeatedly stated, the task of statutory interpretation begins, and ends, with the words of the statutory text. In Thiess v Collector of Customs,[22] French CJ, Hayne, Kiefel, Gageler and Keane JJ endorsed the following statement from an earlier decision of the Court:[23]
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text.[24]
[22](2014) 250 CLR 664 (‘Thiess’).
[23]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (citation omitted).
[24]Thiess (2014) 250 CLR 664, 671 [22]. See further, Deal v Kodakkathanath (2016) 334 ALR 37, 47 [37].
The judge analysed the parties’ arguments with considerable care. We do not see any basis for the assertion that he commenced his task upon a basis that any of the words in s 16 of the Act should be given a particular meaning which was then to be supported by the sequential excluding of the ‘contextual indications’ referred to by the Attorney-General or any other party. The judge’s reasoning discloses an orthodox application of principle. His Honour started and ended with the text of the section, and examined it in its context in the Act and in the wider context of the other legislation to which he was referred. In doing so, the judge gave reasons for why he did or did not accept particular submissions made to him by the parties.
Similarly, there is nothing in the Attorney-General’s complaints about the judge’s references to, and use of, Brodsky. The words ‘any matter’ are plainly words of significant width. So much was conceded by the Attorney-General in argument. The extent of the width of the expression as an expression, however, was not, and is not, relevantly in dispute. It was not submitted by the Attorney-General that the subject of the referral from the Legislative Council was not a matter that might, as a matter of ordinary English language, constitute ‘any matter’. The dispute between the parties is whether the ordinary English words ‘any matter’ should be given a more restricted meaning having regard to the purpose and context of the Act, the broader relevant legislative framework, and the system of general law relating to responsible government and parliamentary privilege. To accept, as the judge did, that the words ‘any matter’, as a matter of ordinary English expression meant ‘any subject matter that may be chosen for inquiry’ did not, and does not, involve any error. Contrary to the submissions of the Attorney-General, this was not a case involving the commission of the ‘basic and serious legal error’ of treating the question of the proper construction of one statutory provision (in this case, s 16 of the Act) as being resolved by an authoritative determination of a different statutory provision that had been enacted in a different context.[25]
[25]Cf Lee v NSW Crime Commission (2013) 251 CLR 196, 233–4 [72] (Hayne J).
For the reasons given above, the assertions of error made by the Attorney-General must be rejected. The question then remains whether, notwithstanding that the errors alleged to have been made by the judge have not been made out, the judge’s construction of s 16 was correct. Accordingly, we turn now to the proper construction of s 16 of the Act.
The proper construction of s 16 of the Act
As we have already observed, the judge provided careful and detailed reasons in support of his construction of s 16 of the Act.[26] His Honour’s reasons repay a reading of them. Moreover, his Honour’s reasons amply demonstrate why the construction posited by the Attorney-General should not be accepted.
[26]Reasons [205]–[258].
At the outset, the Attorney-General emphasised in oral submissions that the words ‘any matter’ are exceedingly broad and if given their ordinary meaning unconfined by context it would mean that matters concerning members of the private sector and others could be the subject of a s 16 referral for investigation by the Ombudsman. However, it is not necessary to determine in the present appeal whether that is so. Suffice to say that the task of this Court is to determine whether the Ombudsman has jurisdiction to investigate the matter referred to her on 25 November 2015.
A foundation of the Attorney-General’s argument concerned the fact that s 16 of the Act is found in a part of the Act headed ‘Investigations’ (pt IV), rather than the part of the Act headed ‘Functions and jurisdiction of the Ombudsman’ (pt III). The Attorney-General criticised the judge’s reasons for concluding that the essential jurisdictional provisions of the Act are found in pt IV. As the Attorney-General put it, ‘it is incontrovertible that the Ombudsman’s functions and jurisdiction are primarily defined in pt III’. The Attorney-General’s criticism is without substance. A fair reading of the judge’s reasons discloses that, in answer to a submission that pt III contained the relevant jurisdictional provisions and that s 16 did not confer additional jurisdiction upon the Ombudsman, the judge, having described the history of the amendments to the Act, observed (correctly in our view) that pt IV now contains a number of other significant jurisdictional provisions.[27]
[27]Ibid [225].
Plainly, as the judge said, pt IV of the Act contains provisions which give the Ombudsman jurisdiction.[28] That the source of the Ombudsman’s jurisdiction is not confined to provisions contained in pt III is also established by s 94E(2) of the Constitution Act 1975. That section provides:
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.
[28]See for example, ss 16C and 16D of the Act at least insofar as they relate to a complaint referred by a person or body other than IBAC.
On this issue, it is also of note that s 13AA(1)(d) of the Act provides that:
In addition to the principal function in s 13 and the function in s 13AAA, the Ombudsman has the following functions –
…
(d)any other functions conferred by or under this or any other Act.
It is not immediately apparent why, if functions and powers of the Ombudsman can be ‘specified in … [the Act] and other laws of the State’ or ‘other functions can be conferred by or under [the Act] or any other Act’, s 16 should not be regarded as a relevant legislative provision that so specifies or confers, upon the Ombudsman, the functions and powers set out in it, namely, the investigation of ‘any matter’ referred by the Legislative Council, the Legislative Assembly or a relevant committee, and the subsequent obligation to report thereon.
Moreover, if the construction of s 16 of the Act for which the Attorney-General contends was to be accepted (that is, only matters that are otherwise within the functions and jurisdiction of the Ombudsman may be referred under s 16), then the effect of s 94E(2) of the Constitution Act 1975 and s 13AA(1)(d) of the Act is that, in order to determine whether a referral may be made under s 16 of the Act, one would have to scour the statute books to see precisely what functions and jurisdiction the Ombudsman possessed at the time of the proposed referral, and then determine whether the proposed referral could be supported by reference to any of the provisions that might have been found. This could hardly be thought to be a convenient result or construction of the Act.
The Attorney-General contended that even if s 16 does create an additional function, that says nothing about the width or content of that function.
The Attorney-General submitted that the Act has been amended from time to time to preserve roles given to other investigative bodies in respect of particular subject matters. Specifically, it was contended that the scheme defined by the provisions of the Act, the IBAC Act, the Protected Disclosure Act and Freedom of Information Act gave certain responsibilities to different investigative bodies and that the provisions of these Acts (and more specifically s 16 of the Act) should not be given a construction that permitted the same matter to be investigated by different investigative bodies under different statutory provisions.
For present purposes, it is not necessary to resolve the boundaries of the operation of the provisions to which we have been taken. It is sufficient to note that in this proceeding it was common ground that the Legislative Council’s referral did not raise matters of the kind regulated by the IBAC Act, the Protected Disclosure Act or the Freedom of Information Act. That said, it is not uncommon for different bodies with different statutory jurisdictions to have fields of operation that are capable of overlapping. Indeed, on 1 July 2016, after the referral, the Act was amended to, amongst other things, insert ss 15A(1B)(a) and (b) and ss 16A(2A)(a) and (b) into the Act.[29] Those sections specify circumstances where the matters referred to in them may be investigated at the same time by the Ombudsman and IBAC or the Ombudsman and a body to whom a referral has been made by IBAC.
[29]See ss 58(2) and 62 of the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016.
In support of his submission that the Acts to which we have referred comprise an interlocking scheme with defined and different responsibilities given to the various investigative authorities, and that the words ‘any matter’ are to be given the construction for which he contends, the Attorney-General submitted that an examination of a number of sections in the Act that dealt with the conduct of investigations showed that they were inapposite and/or could have no application in respect of an investigation required to be conducted pursuant to a referral of a matter, under s 16 of the Act, that was not a matter otherwise within the functions and jurisdiction of the Ombudsman. The Attorney-General observed that a number of these provisions specified matters of procedure in relation to ‘authorities’ as defined and ‘protected disclosure entities’ as defined, but that they did not deal with people who might be the subject of a s 16 inquiry if such an inquiry was permitted to go beyond one that was otherwise within the functions and jurisdiction of the Ombudsman.[30]
[30]See, for example, ss 17(1), (4) and (5) and s 21 of the Act.
However, as was pointed out in the submissions of the President of the Legislative Council, a significant number of the provisions relied upon by the Attorney-General were capable of being given direct operation in the present context;[31] and the balance could be given operation in the present case when one remembered that the definition of ‘protected disclosure entity’ in s 2 of the Act included ‘a member of Parliament’. Thus, the members of Parliament who might be the subjects of the present referral would, as protected disclosure entities, be entitled to the notice required by s 17 of the Act, and the other relevant provisions of the Act would similarly apply.
[31]Ibid ss 17(2) and (3) of the Act.
Looking at the matter more widely, in the end, we are not persuaded, however, that the fact that every provision in the Act that deals with investigations, or procedure, may not be able to be given operative effect, in respect of a s 16 inquiry into a matter that is not otherwise within the functions and jurisdiction of the Ombudsman, is determinative. This position is merely one of the matters relating to context and purpose that must be examined in order to construe s 16 and to then answer the question in dispute in this proceeding.
Again, in support of his submissions about an interlocking scheme with defined responsibilities, the Attorney-General submitted that in such a scheme it could not have been the intention of the Parliament to have a power of broad investigation conferred on the Ombudsman that is, in effect, outside the scheme. We disagree. We see no basis why there cannot be a power (and obligation) in the Ombudsman to investigate matters referred to her by either House of Parliament, or any of their committees, that stands alongside the statutory scheme described by the Attorney-General. Nothing in the text of the Act or its relevant context and purpose tells against it being a power and function of the Ombudsman to investigate ‘any matter’ that is referred to her pursuant to s 16 of the Act.
In respect of the principles of responsible government and parliamentary privilege, the Attorney-General submitted:
34.It is a settled principle of statutory construction that ‘[i]t is in the last degree improbable that the legislature would … depart from the general system of law, without expressing its intention with irresistible clearness’. There are two such principles of general law that are relevant to the construction of s 16.
35.First, the principle of responsible government. The High Court has affirmed the continued existence and importance of responsible government in Australia. The aspect of responsible government that is relevant to the construction of s 16 of the Act is the principle of individual Ministerial responsibility. That principle is that each Minister is responsible to the Parliament for the conduct of his or her Department. To construe s 16 as allowing a House or committee to refer ministerial action for investigation and reporting to the Ombudsman would involve Ministers being held accountable through an entirely novel process, potentially to a different House and, in the case of a referral by a committee, by a very small cohort of a House, and thereby depart from that principle.
36.Secondly, the principle of exclusive cognisance. This principle denotes ‘the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament’, and is an aspect of the broader concept of parliamentary privilege. To construe s 16 as enabling one House of Parliament to refer to the Ombudsman a matter concerning a member of another House would fundamentally undermine that privilege.
37.The general words of s 16, properly construed, evince no clear intention to depart from the principles of responsible government or exclusive cognisance.[32]
[32]Citations omitted.
The President of the Legislative Council, however, submitted that the principles relating to responsible government and parliamentary privilege do not bear on the proper construction of s 16 in the way contended for by the Attorney-General. We agree.
Undoubtedly, each House of Parliament has the control of its own affairs, free from interference by the other.[33] But we are unable to see how it is said that this principle is infringed by the construction of s 16 as determined by the judge. Similarly, principles of Ministerial responsibility do not require that Ministers be held accountable to Parliament for their actions and no-one else. Conduct that is beyond power by a Minister is capable of being reviewed by the Court; and, similarly, conduct by a Minister that is unlawful can be investigated by the police and various other authorities outside the Parliament.
[33]See R v Chaytor [2011] 1 AC 684, 712 [63]–[64] (Lord Phillips of Worth Matravers PSC).
As to the issue of parliamentary privilege, again, we are unable to see how that concept impacts upon the proper construction of s 16 of the Act. That being so, we do not propose to say anything further about the question of privilege.[34]
[34]See Egan v Chadwick (1999) 46 NSWLR 563, 579 [90]; Barber v State of Victoria [2012] VSC 554 [38].
A plain reading of the text of s 16 of the Act compels the conclusion that the matter referred by the Legislative Council on 25 November 2015 was a matter capable of being referred under s 16(1), and also a matter in respect of which the Ombudsman ‘shall, notwithstanding anything to the contrary in [the Act], forthwith investigate … and report thereon’. The Second Reading Speech of the Attorney-General for the Bill that was to become the Act is not inconsistent with such a conclusion. Moreover, the obiter in Glenister to which we have referred[35] also supports this construction and operation of s 16.
[35]Glenister [1976] VR 550, 564.
Additionally, as the judge observed, it would have been a very simple thing for the Parliament expressly to have confined the operation of s 16 in the way contended for by the Attorney-General.[36] Again, as the judge noted, such a course has been taken in a number of other comparable jurisdictions over some 40 years:[37] see, for example, s 15(1) of the Parliamentary Commissioner Act 1971 (WA) as originally enacted and then as amended in 1976;[38] s 14 of the Ombudsman Act 1972 (SA) and s 16(1) of the Ombudsman Act 1978 (Tas);[39] and the re-enactment of the NZ Act in 1975.[40]
[36]Reasons [224].
[37]Ibid.
[38]Discussed by the judge at Reasons [53].
[39]Discussed by the judge at Reasons [54].
[40]Discussed by the judge at Reasons [55].
The Attorney-General’s preferred construction of s 16 runs counter to what French CJ said in International Finance Trust Co Limited v New South Wales Crime Commission:[41]
[T]hose who are required to apply or administer the law, those who are bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen.[42]
[41](2009) 240 CLR 319.
[42]Ibid 349 [42].
Bearing that in mind, starting and ending with the statutory text when considered in light of its context and purpose, we think it plain that the judge’s construction of s 16(1) was correct.
Conclusion
While we would grant leave to appeal, for the reasons given above, the appeal must be dismissed.
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