Community Consultation on IBAC, the Victorian Ombudsman and the Auditor-General

Transcription

1 Community Consultation on IBAC, the Victorian Ombudsman and the Auditor-General SUBMISSION Date: 10 June 2016 Contact Kate Browne, Lawyer, Legal Policy T F kbrowne@liv.asn.au ww.liv.asn.au

2 TABLE OF CONTENTS Introduction 'Follow the dollar' powers A principled approach to powers and protections Funding and Independence Accessibility and Information Sharing Human rights and the integrity system... 5 The IBAC Discussion Paper... 7 Question 1 What factors should IBAC consider when deciding whether to open a compulsory examination to the public?... 7 Question 2 How should those factors strike the right balance between: allowing IBAC to expose corrupt conduct; and protecting a person s individual rights and long-term interests?... 7 Question 3 What type of safeguards should apply to an IBAC public examination to strike the right balance between allowing IBAC to establish the facts of matters it is considering and ensuring public examinations are fair to individuals?... 8 Question 4 What role should IBAC play in improving the capacity of public sector agencies to reduce the risk of corruption? Issues not addressed in the Discussion Paper The Victorian Ombudsman Discussion paper Question 1 What is the appropriate role for the Ombudsman in overseeing non-government bodies that receive public funding, deliver public services or perform other public functions? Question 2 How should the Ombudsman work with other bodies? Which bodies are appropriate to collaborate with, and what should be the limits or safeguards on collaboration? Question 3 What is the appropriate role for the Ombudsman to play in the protected disclosure system while maintaining independent assessment of complaints? Question 4 What methods should the Ombudsman have available to resolve complaints? Question 5 In light of the changes to IBAC s jurisdiction proposed in the 2015 Bill, what role should the Ombudsman play in investigating corrupt conduct? Question 6 What role should the Ombudsman have in reviewing and improving public sector complaint handling practices? Question 7 What information should the Ombudsman be able to share with the public and other bodies? What restrictions or safeguards are appropriate? Question 8 What kinds of education and training should the Ombudsman provide? How, and to whom, should this education be delivered? Should this function be included in law? Question 9 What other changes should be made to ensure that the Ombudsman can best perform her role?

3 The Victorian Auditor-General Discussion paper Question 1 How could the Auditor-General be given a role in auditing the administrative functions of the Courts and Parliament, without impinging on the independence of these institutions? Question 2 Should the Auditor General be automatically appointed as auditor for State controlled companies? Question 3 Should the Auditor General s role be expanded to include providing an audit opinion on the adequacy of financial controls, and/or on performance statements? Question 4 a) How should environmental issues be considered during the auditing process? b) Are there any other issues that should be considered during the audit process? Question 5 a) What powers, if any, should the Auditor General have to access premises in the course of an audit? b) What safeguards should be put in place to protect owners and occupiers, if such powers are provided? Question 6 Are the current limitations on what the Auditor-General can and cannot report to Parliament appropriate? Question 7 How should oversight and regulation of the Auditor General and VAGO be managed? Question 8 What role should the Auditor General play in providing educative or best practice information to the public sector? Question 9 a) How would a proactive Auditor General role improve or hinder the audit process? b) How could potential risks to the Auditor General s core (post-hoc) audit mandate be managed?

4 INTRODUCTION The Law Institute of Victoria ('LIV') welcomes the opportunity to participate in this Community Consultation on the Independent Broad-based Anti-corruption Commission ('IBAC'), the Victorian Ombudsman and the Auditor-General. We have responded to all three discussion papers in this submission. This submission was drafted in consultation with members of the LIV's Administrative Review and Constitutional Law Committee, Human Rights/Charter of Rights Committee and the IBAC Working Group. The three discussion papers raise important issues surrounding the changing roles of these three independent officers of the Parliament of Victoria. In responding to the discussion papers it has become clear that the integrity system in Victoria would benefit from a more systematic broad-scale review to ensure that the various agencies have the ability to work together cohesively, that they have the powers to scrutinise public functions that are increasingly being exercised by private agencies, and that the powers they have and the protections that attach to those powers have a consistent, principled basis. We propose that a broad-scale review of Victoria's integrity system should include a focus on the following key issues. 1. 'Follow the dollar' powers All three integrity agencies focus on investigating issues in the public sector. However, the 'public' sector is rapidly changing and has an increased utilisation of outsourcing of public functions to private bodies. It is therefore necessary and timely to review the oversight over these private bodies performing public functions. It is the LIV's position that services funded by public money should have the consistent oversight and accountability, whether they are performed by public or private bodies. Access to an independent complaints system should be possible wherever public money is being used. However, the application of this oversight and accountability in practice can be complex and is currently inconsistent. For example, the definition of functional public authorities in the Charter of Human Rights and Responsibilities ('the Charter') and in the Ombudsman Act 1973 (Vic) ('Ombudsman Act') are inconsistent, which creates difficulties for the Ombudsman when she is investigating human rights complaints (see response to Question 1, Victorian Ombudsman Discussion Paper). We welcome the introduction of 'follow the dollar' powers for the Auditor-General in the Integrity and Accountability Legislation Amendment (A Stronger System) Bill 2015 ('2015 Integrity Bill'). However, we note that these powers only apply to performance audits, not financial audits. 2. A principled approach to powers and protections The coercive powers available to each of the integrity bodies, and the associated protections of witnesses, vary from agency to agency. It is important when making a decision to provide coercive powers to an agency, and to potentially deprive a witness of the ability to claim a privilege, that this is done on a rational, principled basis. 4

5 While consistency between the various powers assigned to the agencies is important, it is also necessary to examine each agency and its specific functions and role and the necessity of providing coercive powers to achieve a particular goal. While coercive powers are important in allowing these integrity bodies to gather information for their functions, those powers must also be balanced by appropriate safeguards to protect the rights of individuals. Privileges such as the privilege against self-incrimination or client legal privilege are fundamental to the Australian legal system. These privileges must be protected and should not be abrogated unless absolutely necessary, and then in clear and unambiguous language. 3. Funding and Independence It is important to ensure the independence of all three agencies from the Executive, as their role is to investigate and examine the public sector. We note below that the Ombudsman currently receives funding from the Executive, which potentially conflicts with her role (response to question 9, Victorian Ombudsman Discussion Paper). IBAC has also raised potential issues with its current funding model of grant facilitated by the Department of Premier and Cabinet. 1 The IBAC Commissioner noted that it may be more appropriate for a more independent funding model, directly through Parliament. A review of the integrity system should consider funding models for these agencies that are independent from the Executive. 4. Accessibility and Information Sharing All three agencies interact with the public sector and, to varying extents, with the general public. They also interact with a wide variety of other integrity, complaints and educational agencies. To have a functioning and efficient integrity system, these agencies require the ability to share information easily where necessary (provided that relevant protections are in place). It can also be confusing for members of the public to navigate the complaints and integrity system. The Ombudsman receives the largest amount of contact from the public, with over 38,000 approaches. 2 The LIV supports the Ombudsman being provided with the ability to act as a central contact point for complaints about the public sector (see our response to Question 2, Victorian Ombudsman Discussion Paper), with the associated referral powers. 5. Human rights and the integrity system The Charter is relevant to the functions of IBAC, the Ombudsman and the Auditor-General and the integrity and complaints system in Victoria more generally. The Ombudsman's power to investigate administrative actions includes the power to enquire into and investigate alleged breaches of the Charter. 1 Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016) Department of Premier and Cabinet, The Victorian Ombudsman Discussion Paper (March 2016) 6. 5

6 IBAC's functions include ensuring that police officers and protective service officers have regard to the human rights in the Charter. 3 The Auditor-General can consider lawfulness under the Charter as part of its performance audits of a public authority. 4 In our comments in the Discussion Papers' questions we mention a number of instances where Charter rights could be better integrated within the integrity system. Our recommendations for strengthening the consideration of human rights in the integrity system include: recommending greater powers for the Ombudsman and the Victorian Equal Opportunity and Human Rights Commission to work together on human rights issues; recommending that the Charter be considered during performance audits by the Auditor-General; and recommending that IBAC be provided with greater capacity to investigate allegations of serious human rights abuses by police and protective services officers. A broad review of the integrity system should examine the way in which the Charter has been incorporated into the integrity system and how this can be improved. 3 Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 15(3)(b)(iii). 4 Audit Act 2004 (Vic) s 15(1). 6

7 THE IBAC DISCUSSION PAPER Question 1 What factors should IBAC consider when deciding whether to open a compulsory examination to the public? Question 2 How should those factors strike the right balance between: allowing IBAC to expose corrupt conduct; and protecting a person s individual rights and long-term interests? Public hearings can enhance accountability and transparency and promote public confidence in an anticorruption system. As the Discussion Paper notes IBAC has conducted three public examinations so far: Operation Ord and Operation Dunham, which involved allegations of serious corrupt conduct relating to officers at the Department of Education and Training; and Operation Fitzroy which involved allegations of serious corrupt conduct at the Department of Transport and Public Transport Victoria. IBAC is also currently holding public examinations at part of Operation Ross, which involves investigation of serious police misconduct in Ballarat. The public discussions surrounding these hearings have highlighted the important role that they can play in exposing allegedly corrupt conduct, providing an impetus for change in agencies and promoting transparency and accountability of government and public administration. The hearings create a public record and allow the public to bear witness to instances of corrupt conduct or police misconduct. They are also useful in assisting in the identification of systemic trends over time. However, IBAC also needs to take into account the reputational harm and privacy implications that public hearings can have for the individuals involved. The Discussion Paper provides a useful overview of these issues. 5 Section 117 of the Independent Broad-based Anti-Corruption Commission Act 2011 (Vic) ( IBAC Act ) provides a basis for IBAC to balance these often competing interests. Under this section IBAC examinations are not open to the public unless IBAC considers on reasonable grounds that: (a) (b) there are exceptional circumstances; and it is in the public interest to hold a public examination; and (c) a public examination can be held without causing unreasonable damage to a person's reputation, safety or wellbeing. 5 Department of Premier and Cabinet, The Independent Broad-based Anti-corruption Commission Discussion Paper (March 2016)

8 IBAC may take into account the following considerations when determining whether a public examination is in the public interest (s 117(4)): (a) whether the corrupt conduct or the police personnel conduct being investigated is related to an Individual and was an isolated incident or systemic in nature; (b) the benefit of exposing to the public, and making it aware of, corrupt conduct or police personnel misconduct; (c) in the case of police personnel conduct investigations, the seriousness of the matter being investigated. While the LIV has stated in the past that the public interests will usually fall in favour of private hearings in order to protect the privacy and reputation of witnesses, in the LIV s view, IBAC appears to have appropriately balanced these competing factors when deciding to hold public hearings. 6 However, the LIV has also previously raised concerns that the inclusion of the exceptional circumstances requirement in s 117 IBAC Act sets the standard too high for public hearings. 7 The high standard set by this requirement (and s 117 as a whole) has been confirmed by the Court of Appeal in R & M v IBAC. 8 The Court noted that exceptional circumstances must be highly unusual, and quite rare. 9 'Exceptional circumstances remains an ambiguous term that could lead to unnecessary litigation and does not necessarily assist IBAC in balancing the various factors involved in determining whether it is appropriate to hold a public hearing. 10 Instead, it provides an additional restriction on IBAC s discretion to determine whether it is in the public interest to hold a hearing, or whether a public hearing would cause unreasonable damage to a person s reputation. Other Australian anti-corruption bodies do not have an exceptional circumstances requirement. 11 It is the LIV s view that this requirement should be removed. The other two requirements still set a high standard for determining when a public hearing is appropriate, and require IBAC to take into account the public interest and potential reputational harm. Question 3 What type of safeguards should apply to an IBAC public examination to strike the right balance between allowing IBAC to establish the facts of matters it is considering and ensuring public examinations are fair to individuals? The LIV has previously noted that that the inquisitorial nature of hearings of an investigatory body, which attempt to uncover the truth rather than make a finding of guilt or innocence, mean that particular attention 6 Law Institute of Victoria, Submission to Elizabeth Proust, Special Commissioner - Integrity and Anti-Corruption Review and Peter Allen, Public Sector Standards Commissioner, Integrity and Anti-Corruption System Review, 4 March 2010, 8. 7 Law Institute of Victoria, Submission to The Honourable Andrew McIntosh, MP, Minister for Corrections, for Crime Prevention and responsible for the establishment of an anti-corruption commission, Legislation creating the Independent Broad-based Anti-Corruption Commission, submission, 9 May 2012, 9. 8 R & M v IBAC [2015] VSCA Ibid [67]. 10 Accountability Round Table, Submission to the Special Minister for State, Gavin Jennings, The Amendments Recommended by the Accountability Round Table as necessary for the IBAC legislation, 31 August 2015, Department of Premier and Cabinet, The Independent Broad-based Anti-corruption Commission Discussion Paper (March 2016) Appendix D. 8

9 should be paid to the rights of a person who might be required to give evidence and guaranteeing procedural fairness. 12 Below are some areas that the LIV has previously raised where these protections need to be strengthened. Witness Summons Under s 121(2) IBAC Act, IBAC must state the nature of the matters about which the witness will be questioned when issuing a witness summons, unless IBAC considers on reasonable grounds that it would be likely to prejudice the conduct of the investigation or is contrary to the public interest. Under s 122 IBAC Act IBAC must report to the Victorian Inspectorate on the issue of any witness summons within 3 days, including the name of the person summoned and the reason why the witness summons was issued. The LIV understands that witness summonses cannot in all circumstances include information about matters on which the witness will be questioned (s 121(2)). However, the LIV is of the view that IBAC withholding such information can have an adverse impact on a witness and may affect their ability to answer questions, with potentially significant ramifications. It is the LIV s view that the Victorian Inspectorate should have an oversight role in relation to decisions not to disclose information in summonses. In the LIV s 2012 submission, the LIV recommended that s 122 be amended to make it clear that IBAC must provide reasons for withholding information on the matters about which a person is to be questioned to the Victorian Inspectorate. 13 The LIV reiterates this recommendation and is of the view that it will allow for appropriate oversight of the circumstances surrounding information being withheld from witnesses, provide accountability for these decisions and ensure that this power is being exercised fairly and appropriately by IBAC. The Parliamentary IBAC Committee considered this issue in its recent report: Strengthening Victoria s key anti-corruption agencies and recommended that the Victorian Government should clarify the responsibility of the Victorian Inspectorate in relation to the oversight of witness summons issued by IBAC' (Recommendation 4.9). 14 Derivative Use Immunity Witnesses summoned to give evidence to IBAC currently have derivative use immunity as a result of the Supreme Court case Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC The LIV views derivative use immunity as an important protection given that under the IBAC Act witnesses cannot refuse to answer questions or give information on the basis that they might incriminate themselves Law Institute of Victoria, Submission to Elizabeth Proust, Special Commissioner - Integrity and Anti-Corruption Review and Peter Allen, Public Sector Standards Commissioner, Integrity and Anti-Corruption System Review, 4 March 2010, Law Institute of Victoria, Submission to The Honourable Andrew McIntosh, MP, Minister for Corrections, for Crime Prevention and responsible for the establishment of an anti-corruption commission, Legislation creating the Independent Broad-based Anti-Corruption Commission, submission, 9 May 2012, Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016) Judicial College of Victoria, Charter of Human Rights Bench Book (10 May 2016)

10 The LIV would not support any changes that would limit the derivative use immunity currently available to witnesses. Question 4 What role should IBAC play in improving the capacity of public sector agencies to reduce the risk of corruption? IBAC s main role is to investigate and report on corrupt conduct. The public hearings that IBAC have held have been particularly successful in achieving change and reducing the risk of corrupt conduct into the future. The LIV does express some concerns about the Discussion Paper s suggestion of potentially much broader IBAC functions to set standards for systems and policies and then monitoring compliance with those standards. This may lead to a risk of IBAC self-investigating, where IBAC may suggest a particular policy, which the agency follows and then criticises the agency in relation to that policy (this is similar to our concerns regarding a broader educational role for the Ombudsman discussed below). This could put IBAC in a position of conflict when it comes to investigating corrupt conduct. However, this risk could be avoided through careful delineation of roles, guarding against the risk of self-investigation. More general education on how to prevent and target corruption may be more appropriate and would avoid this risk. However, it is also important to look at the roles of other bodies and whether they are more suited to conducting education in this area. As the Discussion Paper notes, the Victorian Public Sector Commission s ( VPSC ) objectives include strengthening the efficiency, effectiveness and capability of the public sector and maintaining and advocating for public sector professionalism and integrity. VPSC's objectives would include preventing corrupt conduct and perhaps IBAC could be provided with additional information-sharing abilities so that it could work more closely with the VPSC on education around preventing corrupt conduct. Issues not addressed in the Discussion Paper IBAC s police complaints jurisdiction The Discussion Paper does not include any questions regarding the operation of IBAC s jurisdiction relating to complaints of police misconduct. IBAC has very broad powers relating to the investigation of police officers (similar to those provided to the previous Office of Police Integrity). However, in the LIV members experience, IBAC is not using these powers to investigate the vast majority of police complaints it receives. Instead, around 90% of police complaints are being referred from IBAC to Professional Standards Command at Victoria Police for investigation. 17 The result is that police often carry 16 Law Institute of Victoria, Submission to The Honourable Andrew McIntosh, MP, Minister for Corrections, for Crime Prevention and responsible for the establishment of an anti-corruption commission, Legislation creating the Independent Broad-based Anti-Corruption Commission, submission, 9 May 2012, IBAC s Deputy Commissioner Mr Simon Heath has stated that approximately 90% of police conduct complaints received by IBAC in 2014 were referred back to Victoria Police for investigation: Policing the police (2014) 11 Law Institute Journal

11 out investigations of police misconduct including where there are allegations of unlawful or criminal conduct, disciplinary breaches or human rights abuses in breach of the Charter. It is the LIV s view that all complaints of police misconduct should be investigated independently of Victoria Police. This position is consistent with standards of international human rights law which requires States to investigate allegations of [International Covenant on Civil and Political Rights] violations promptly, thoroughly and effectively through independent and impartial bodies. 18 As the LIV has noted in the past, Victoria s inadequate response to complaints of misconduct by police has been a recurring issue in Victoria for decades and is damaging to not only community trust in police, but also public confidence in societal institutions. 19 IBAC has similar staff capacity as the former Office of Police Integrity, however, it has a much broader jurisdiction to cover public sector corruption (and this jurisdiction will grow with the lowering of the threshold in the Integrity and Accountability Legislation Amendment (A Stronger System) Bill 2015). One way to increase the independent investigation of police misconduct would be to provide IBAC with additional resources to allow it to prioritise this function. The final Report of the 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 includes a recommendation that the Government ensure that IBAC has capacity to investigate allegations of serious human rights abuses by police and protective services officers (Recommendation 26). 20 Additional funding would need to be accompanied by cultural change, as LIV members report that the current culture at IBAC is that it is an anti-corruption body, not a complaints body, and this affects the priority IBAC places on investigating police misconduct. 21 Another alternative is to establish a new, independent body to investigate complaints of misconduct. As the IBAC Parliamentary Report notes, other states are currently reviewing the way in which complaints of police misconduct are handled and by which bodies. 22 The IBAC Committee notes that it intends to further investigate this issue. The LIV recommends that the Victorian Government conduct a review of the way in which police misconduct complaints are investigated and the best way for this to be achieved by a body independent of Victoria Police. Operation of s 194 IBAC Act on requests for documentation under FOI The IBAC Committee also recommends that: the Victorian Government as a part of its ongoing review should assess section 194 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) to review any inconsistency in accessing documents 18 Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004) [15]. 19 Law Institute of Victoria et al, Joint letter to Premier Napthine, Re: United Nations Human Rights Communication No. 1885/2009 (Horvath v Australia), 24 July 2014, < Committee-Communication-(Horvath-v.aspxf> Independent Reviewer Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (September 2015) For suggestions on the cultural change required see: Police Accountability Project, Independent Investigation of Complaints against the Police: Policy Briefing Paper (2015) < >. 22 Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016)

12 between complaints lodged with the Independent Broad-based Anti-corruption Commission and Victoria Police. This matter should be prioritised. 23 [emphasis added] This recommendation was based on the LIV s evidence that s 194 of the IBAC Act affects the ability of complainants to access documents under FOI depending on whether their complaint was originally made to IBAC or Victoria Police. Section 194 of the IBAC Act provides that the Freedom of Information Act 1982 ( FOI Act ) does not apply to a document in the possession of any person or body to the extent that it discloses information that relates to a complaint (defined in s 3 to mean a complaint under section 51 or a police personnel conduct complaint), or investigation conducted under the IBAC Act. The purpose of this provision (and its predecessor, s 51 Police Integrity Act 2008 (Vic)) is to protect the integrity of IBAC s investigatory functions. 24 However, the broad scope of s 194 IBAC Act creates inconsistencies where complaints are investigated by Victoria Police. Our members have experienced the problem where documents relating to a complaint made to IBAC and then referred to Victoria Police for investigation will be exempt from the FOI Act by the operation of s 194. However, documents about the same complaint made directly to Victoria Police would be subject to the FOI Act. Despite undergoing the same investigation, the effect of s 194 means that the ability of a complainant to access the documents depends on whether the complaint was originally made to IBAC or Victoria Police. As a result of this provision, LIV members in private practice and community legal centres are advising complainants to lodge complaints directly with Victoria Police and not with IBAC. This means that, in practice, s 194 is currently acting as a barrier to complaints regarding police conduct being lodged directly with IBAC. The LIV shares the IBAC Committee s concern that the operation of the current legislation does not fulfil the intention of this section for IBAC to operate as an alternative body to make a complaint regarding Victoria Police. 25 The LIV acknowledges the IBAC Commissioner s comments about the importance of protecting operational methodology, sensitive information and the safety and welfare of witnesses. 26 However, the terms of s 194 are so broad that they capture even investigation documents created solely by Victoria Police. The disclosure of these documents through FOI is unlikely to disclose any IBAC information or strategies or in any way undermine IBAC s investigations or investigatory functions. Transparency of investigations into police misconduct complaints is desirable and should only be restricted to the extent necessary to protect the integrity of IBAC s investigatory functions. For the reasons above, as presently drafted, s 194 exempts from FOI a far broader range of documents than is necessary to achieve this purpose. 23 Ibid Cameron, B MP Police Integrity Bill, Second Reading Speech, Hansard 13 March 2008 (Assembly) Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016) Ibid. 12

13 The LIV recommends that s 194 be amended to address this anomaly and ensure that complainants receive the same access to documents through FOI regardless of the body with which the complaint is first lodged. Additional Criminal Offences The IBAC Committee recommended that the Victorian Government should: further consider the definition of relevant offence within s 3 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic). The review should examine whether any additional criminal offences should be included in the definition of relevant offence to ensure clarity of the types of conduct able to be considered and investigated by the Independent Broad-based Anti-corruption Commission. 27 The LIV has previously commented that IBAC s mandate should be broad and should, at the very least, include all indictable common law offences. 28 While we welcome the 2015 Integrity Bill s broadening of the term relevant offence to include the crime of misconduct in public office, the LIV's position is that all indictable common law criminal offences should be included. Examples of some indictable common law offences that are not currently included in the IBAC Act are: conspiracy to cheat and defraud and false imprisonment. Both of these offences could involve public officers breaching public trust or dishonestly performing their functions. We support the IBAC Committee s recommendation in this respect and urge the Victorian Government to implement it as part of their broader review. Protected Disclosures The IBAC Committee is currently conducting a review of the Protected Disclosure Act 2012 (Vic). The LIV is concerned that protected disclosures about Members of Parliament are only referred to IBAC at the discretion of the Presiding Officer of Parliament, in contrast with all other entities. 29 In the LIV's view, the exceptions on reporting for disclosures about members of Parliament should be amended so that there is consistency and integrity in the IBAC scheme dealing with all protected disclosures. This will ensure public confidence in the scheme, rather than a concern about Members of Parliament making decisions about their colleagues. 27 Independent Broad-based Anti-corruption Commission Committee, Parliament of Victoria, Strengthening Victoria's key anti-corruption agencies? (2016) 65 (Recommendation 4.2). 28 Law Institute of Victoria, Submission to The Honourable Andrew McIntosh, MP, Minister for Corrections, for Crime Prevention and responsible for the establishment of an anti-corruption commission, Legislation creating the Independent Broad-based Anti-Corruption Commission, submission, 9 May 2012, For more details see e.g. Law Institute of Victoria, Submission to the Attorney-General, Integrity Legislation Amendment Bill 2014, 13 October 2014, 1 < aspx>. 13

14 THE VICTORIAN OMBUDSMAN DISCUSSION PAPER Question 1 What is the appropriate role for the Ombudsman in overseeing non-government bodies that receive public funding, deliver public services or perform other public functions? Public functions are increasingly being carried out by the private sector. This has implications for the established systems of oversight and review of the actions of public authorities. Follow the dollar powers It is important for the Government to undertake a review of public authorities and public functions being carried out by the private sector, and determine where oversight is appropriate and identify the gaps in oversight. The LIV supports the Ombudsman having follow the dollar powers for complaints regarding unsatisfactory service provision, similar to those recently introduced in the 2015 Integrity Bill for the Auditor-General. Definitions of functional public authorities The definitions of public authorities in the Ombudsman Act and the Charter are inconsistent. This creates issues for the Ombudsman when she is investigating human rights complaints. The LIV s submission to the 2015 Charter of Human Rights and Responsibilities Review included a recommendation that: Section 13(4) of the Ombudsman Act 1977 (Vic) should be amended to include the administrative actions of all functional public authorities under the Charter. (Recommendation 4) 30 This recommendation was supported by the Final Report by the Independent Reviewer (Recommendation 24). 31 Having consistent coverage of functional public authorities under the Charter and the Ombudsman Act is important for consistency and clarity. The Ombudsman s jurisdiction should also be clearly stated in the Charter for clarity. 32 However, we note that some issues remain within the scope of the public authority definition under the Charter. The Final Report provides suggestions for ways to effectively define functional public authorities, including: setting out a non-exhaustive list of functions of a public nature; prescribing specific entities to be 30 Law Institute of Victoria, Submission to Independent Reviewer, 2015 Review of the Charter of Human Rights, 2015, Independent Reviewer Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (September 2015) Ibid (Recommendation 24). 14

15 public authorities; including terms in State contracts about public authority obligations; and a method for an entity to opt in to the public authority obligations. 33 The LIV supports these recommendations aimed at clarifying the scope of functional public authorities and urges the Government to adopt them. Question 2 How should the Ombudsman work with other bodies? Which bodies are appropriate to collaborate with, and what should be the limits or safeguards on collaboration? As the Discussion Paper notes, in the Ombudsman received over 38,000 approaches, including complaints and requests for information. 34 In the LIV s view, the Ombudsman should be provided with the ability to act as a single entrance point for complaints about the public sector (with IBAC remaining the clearing house for protected disclosure complaints). This would allow the Ombudsman to provide a single complaints portal which would significantly reduce the complexity and confusion resulting from the current system of complaints bodies. The Discussion Paper also notes that the Charter Report recommended that the Ombudsman and the Victorian Equal Opportunity and Human Rights Commission be given new powers to work together, including sharing information, referral powers and asking for assistance. While the 2015 Integrity Bill does include information sharing provisions, it does not include information sharing between the Ombudsman and VEOHRC. Consistent with the Charter Report recommendations, the LIV suggests that such information sharing powers would be appropriate, with necessary privacy protections. Question 3 What is the appropriate role for the Ombudsman to play in the protected disclosure system while maintaining independent assessment of complaints? It is appropriate for IBAC to continue its role as the primary contact point for protected disclosures. As a starting point, where IBAC refers a protected disclosure to the Ombudsman it is important that it remains there, to ensure that the investigation of the disclosure is completed as required. In certain circumstances it may be appropriate for the Ombudsman to refer a disclosure to another agency provided that there are protections, such as IBAC agreeing with the referral, and the Ombudsman or IBAC continuing to monitor the investigation of the disclosure to ensure it is completed. This could involve an obligation on the agency to report back on the progress and outcome of an investigation. The Ombudsman and IBAC have different powers to investigate protected disclosures and different privileges are available to witnesses. Section 18(5) of the Ombudsman Act, for example, states that that the Ombudsman cannot compel someone to produce any document or give any evidence which they could not be compelled to produce or 33 Ibid (Recommendations 12-14). 34 Department of Premier and Cabinet, The Victorian Ombudsman Discussion Paper (March 2016) 6. 15

16 give in proceedings before a court. This allows witnesses to claim privileges such as the privilege against self-incrimination. It is appropriate that these privileges apply given that complaints and disclosures investigated by the Ombudsman are generally less serious than issues investigated by IBAC. In contrast, the IBAC Act includes an express abrogation of the privilege against self-incrimination for witnesses who are summoned (s 144). As discussed above, it is important that the abrogation of privileges in a coercive or inquisitorial context is accompanied by appropriate safeguards, such as use-immunity and derivative-use immunity. The LIV has previously noted the importance of protecting privileges such as the privilege against self-incrimination and client legal privilege. 35 IBAC and the Ombudsman investigate different forms of protected disclosure complaints. It is appropriate for different agencies to have varying coercive powers depending on their function. The IBAC s role in investigating serious and systemic corrupt conduct is very different to the Ombudsman s role, which is more centred on resolving complaints. IBAC s decision to investigate or refer protected disclosure complaints would be based on the seriousness of the complaint, and would also take into account the powers of the agency to which the complaint is referred. If the Ombudsman has issues with, for example, determining when privileges apply, there may be an alternative to simply removing the privileges. IBAC has the ability to apply to the Supreme Court to determine privilege claims where a person claims privilege over a document which is under a search warrant (ss IBAC Act). A similar system could be legislated to allow the Ombudsman to approach the Supreme Court to determine whether a privilege claimed by a witness applies, such as, for example, when the Ombudsman is summonsing documents from a witness who is claiming privilege. Question 4 What methods should the Ombudsman have available to resolve complaints? The LIV supports the Position Paper s suggestion of providing the Ombudsman with voluntary conciliation powers under the Ombudsman Act. The LIV notes, however, that the Ombudsman will require greater resourcing to carry out this function. Question 5 In light of the changes to IBAC s jurisdiction proposed in the 2015 Bill, what role should the Ombudsman play in investigating corrupt conduct? As the Discussion Paper notes, the 2015 Integrity Bill has broadened IBAC s jurisdiction to include all corrupt conduct, instead of only serious corrupt conduct. However, IBAC is required to prioritise the investigation of serious or systemic corrupt conduct. IBAC is likely to continue referring complaints about less serious corrupt conduct to the Ombudsman. The LIV supports greater information-sharing capabilities between agencies, particularly where agencies are investigating the same complaint (with appropriate privacy protections). However, LIV members are concerned that joint investigation powers may lead to agencies gaining access to information that they may not otherwise have by using their own investigatory powers. This could 35 Law Institute of Victoria, Submission to Elizabeth Proust, Special Commissioner - Integrity and Anti-Corruption Review and Peter Allen, Public Sector Standards Commissioner, Integrity and Anti-Corruption System Review, 4 March 2010, 9. 16

17 undermine the legislative scheme that provides particular powers to each agency depending on their functions. LIV members are also concerned that joint investigations may lead to greater delays in concluding an investigation and responding to complainants. Question 6 What role should the Ombudsman have in reviewing and improving public sector complaint handling practices? The Ombudsman already undertakes own motion investigations and publishes guides for improving public sector complaint handling, such as the Council and Complaints A good practice guide. 36 Conducting these reviews and providing guidance on complaints handling practices is an aspect of the Ombudsman s role of enhancing the accountability of the public service. Legislating for this role would assist the Ombudsman to prioritise this work and gain adequate resources to undertake it. The LIV has previously raised concerns about the fact that the Ombudsman is restricted to conducting enquiries or investigations only where there is an administrative action. 37 Broadening the Ombudsman s ability to conduct own motion reviews of the complaint handling systems of groups of authorities for the purpose of improving administration without necessarily requiring an administrative action would complement the Ombudsman s purpose and other powers. The LIV notes, however, that there is the potential for this role to overlap with the role of the Victorian Public Sector Commissioner, who provides advice on issues relevant to public sector administration and service delivery. It is important to avoid unnecessary duplication and the Ombudsman and the Victorian Public Sector Commissioner should be provided with the ability to work closely together to avoid this. Question 7 What information should the Ombudsman be able to share with the public and other bodies? What restrictions or safeguards are appropriate? The LIV supports the Ombudsman s suggestion for greater powers to publish information where it is the public interest to do so. This could involve, for example, publishing information on de-identified case studies, statistical data and updates on investigations. This would provide greater flexibility than the current requirement for the Ombudsman to table most information in parliament before it is made public. However, the LIV notes that information published without being tabled in Parliament would not be protected by parliamentary privilege. 36 Victorian Ombudsman, Councils and complaints - a good practice guide (February 2015). 37 Law Institute of Victoria, Submission to Independent Reviewer, 2015 Review of the Charter of Human Rights, 2015, 8. 17

18 Question 8 What kinds of education and training should the Ombudsman provide? How, and to whom, should this education be delivered? Should this function be included in law? The Ombudsman already provides educational services (as noted by the Discussion Paper), but does not have legislated training and education functions. A legislated education function focusing on, for example, complaint handling, making complaints and common administrative issues would complement the Ombudsman s overall role of investigating complaints and upholding the accountability of the public sector. A legislated education function would allow the Ombudsman to devote appropriate resources to this function and should be accompanied by adequate funding to carry out this function. Again, however, it is important that the Ombudsman avoids being in a position where she is reviewing her own standards, a risk that can be minimised by focusing on broad educational strategies. It is also important to ensure that there is not unnecessary overlap between the Ombudsman and the Victorian Public Sector Commissioner, who also has educative functions for the public sector. Potential overlap could be addressed by the Ombudsman focusing on her areas of expertise and through information sharing with the Commissioner. Question 9 What other changes should be made to ensure that the Ombudsman can best perform her role? Budgetary independence The Ombudsman currently receives funding from the executive (the Department of Premier and Cabinet). This potentially conflicts with the Ombudsman s role of conducting independent oversight over executive government action. The LIV recommends that the Ombudsman instead be funded directly by Parliament (similar to the Auditor- General). This is supported by the Public Accounts and Estimates Committee s 2006 Report on a Legislative Framework for Independent Officers of Parliament, which recommended that independent officers be funded directly by the appropriate parliamentary committee. 38 Access to deliberations of ministers or committees Section 19 of the Ombudsman Act prevents the Ombudsman from gaining access to information about 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. This restriction appears to be quite broad and could limit the Ombudsman s ability to effectively investigate complaints involving Ministerial advisers. We recommend that this section be reviewed. 38 Public Accounts and Estimates Committee, Parliament of Victoria, Report on a Legislative Framework for Independent Officers of Parliament (2006), 71 (Recommendation 2). 18

19 Effective Oversight The LIV supports the current oversight of the Ombudsman by the Victorian Inspectorate and the Accountability and Oversight Committee. While the Parliamentary Committee reviews and reports to the Parliament on the overall performance of the Ombudsman, the Victorian Inspectorate plays an important role in overseeing the use of coercive powers across the integrity bodies and providing assurance to the public that that they are used appropriately and lawfully. Ombudsman s investigation of prisons Australia signed the Optional Protocol to the Convention against Torture (OPCAT) on 19 May 2009 but has not yet ratified the agreement. The LIV s position is that Australia should ratify and implement OPCAT and commit to establishing National Preventive Mechanism(s) (NPM) and permitting the United Nations Subcommittee on the Prevention of Torture to visit any place of detention. Whilst Australian law already prohibits all forms of torture, ratification of OPCAT would recognise the importance of supporting and strengthening the measures already in place and would enhance Australia s commitment to values and protections of the United Nations Convention against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment. 39 In Victoria, the Ombudsman already performs much of the role of an NPM for Victorian prisons. The Ombudsman has a program for inspecting prisons in Victoria and has published a number of reports on issues in prisons, e.g. the 2015 Report on her Investigation into the rehabilitation and reintegration of prisoners in Victoria. 40 The LIV recommends that the Ombudsman s role in investigating prisons be formalised in legislation and for the Ombudsman to be provided with adequate funding to carry out this role in line with the requirements under OPCAT. 39 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). 40 Victorian Ombudsman, Investigation into the rehabilitation and reintegration of prisoners in Victoria (September 2015). 19

20 THE VICTORIAN AUDITOR-GENERAL DISCUSSION PAPER Question 1 How could the Auditor-General be given a role in auditing the administrative functions of the Courts and Parliament, without impinging on the independence of these institutions? The LIV supports consistent audit coverage (including both financial and performance audits) of the administrative functions of the Courts and Parliament, provided that the risk of affecting the independence of those bodies is managed and the separation of powers is upheld. As the Public Accounts and Estimates Committee ( PAEC ) notes in its 2010 Report on the Inquiry into Victoria s Audit Act 1994 ('2010 PAEC Report') it is important to clearly demarcate Parliament s formal operations and its administrative functions in order to provide for auditing of the administrative functions. 41 D.F Jackson Q.C. provides a useful formulation for defining the administrative functions of Parliament as including: a. the number, seniority and organisational structure of staff of the Parliament; b. the efficiency of the use or allocation of parliamentary resources; and c. the expenditure of the Parliament, and its efficiency or otherwise, in respect of such items as library services, public information, entertainment, information technology, or building renovation or maintenance. 42 PAEC also recommends that any new provisions allowing this auditing should explicitly prohibit the Auditor- General from questioning the merits of Parliament s formal functioning as Victoria s legislature, including the role of parliamentarians. 43 Similar concerns also arise with providing the Auditor-General with the power to audit the administrative functions of Courts. The LIV recognises the importance of the judicial functions not being affected by a performance review of the administrative functions of the Court. Appendix 1 of the 2010 PAEC Report again provides a useful list of administrative functions to help distinguish between administrative and judicial functions and avoid auditing of judicial functions. 44 Recommendation 20 of the 2010 PAEC Report contains additional safeguards for judicial independence including amending the Audit Act to state that the performance audits must not include judicial functions and that audit reports must not question the merits of judicial functions Public Accounts and Estimates Committee, Parliament of Victoria, Report on the Inquiry into Victoria's Audit Act 1994 (2010) Ibid, Appendix 1, Ibid (Recommendation 2) 44 Ibid, Appendix 1, Ibid (Recommendation 20). 20