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Ryan Smith MP, Member for WARRANDYTE

Special Minister of State

Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018

6 March, 2018

I rise to speak on the Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018. The bill, as described by the government, aims to make a broad range of changes to the various acts that govern Victoria's integrity and accountability bodies. Can I first put on record my appreciation to the department for their very comprehensive briefing. I am certainly very pleased that that was able to happen.

The changes that the bill facilitates are designed to provide clarity around issues such as public disclosure relating to the accountability of the public service and the various agencies and departments and of those who are entrusted with the use and the allocation of public resources. The Attorney-General outlined the principles that guided these integrity reforms in his second-reading speech, principles such as accountability, independence, effectiveness, transparency, collaboration, cohesion and fairness. These are certainly laudable aspirations, and we support the intent of the bill and the principles behind them.

I want to make very clear that we do support the bill. We certainly do not oppose what was put on the table two weeks ago. Of course some issues that have arisen over the last 24 hours have made aspects of this bill a little bit more murky, and I will talk about that shortly. But starting with the second-reading speech that the Attorney-General presented to this house, I want to refer members to the paragraph which says, and I quote:

The bill also addresses recommendation 18 of the Victorian Equal Opportunity and Human Rights Commission's (VEOHRC) 2015 report on sex discrimination and sexual harassment in Victoria Police …

I support and congratulate the Attorney-General on addressing this important recommendation from the Victorian Equal Opportunity and Human Rights Commission. I have read the report myself, and I have to say that some of the witness statements are quite harrowing and quite confronting. I also read the follow-up report from 2017 which does indicate that there is real culture change happening as a result of the 2015 report, with witnesses saying that the report was an enormous step forward in addressing the cultural problems that were within Victoria Police. It is pleasing that the bill does address that recommendation.

It is a shame, however, that the bill is not able to take into account the recommendations from the equal opportunity commission's report into the bullying and harassment in the Metropolitan Fire Brigade (MFB). It is unfortunate that this government refuses to make that report public, and it is unfortunate that the many issues that the commissioner raised have not been able to be put forward here in the house or even be addressed in this particular bill. For those who have not been following, this is the report that the United Firefighters Union (UFU) and the government have sought to cover up and delay for over one and a half years. At the outset the UFU told its members not to participate in the report, bizarrely even saying that the review was not independent. What the UFU actually said in a newspaper article of 8 July 2016 is that:

We have good grounds to believe that the MFB and CFA management have orchestrated this campaign in conjunction with media outlets, the Liberal Party and other third parties in an attempt to lower the standing of firefighters in the community.

I say this is quite a bizarre accusation because in fact none of the bodies that the UFU spoke about actually called for the review; in fact it was the government that kicked things off originally. That makes it all the more strange that the Minister for Emergency Services is now using his executive powers to withhold the public release of that report. It is bizarre because a huge amount of information about this particular report has been put on record. It was said on 27 April 2017 that:

… investigators working on the review have been told of:

recruitment panels being biased against hiring women …

a stripping ritual at the end of recruitment courses … whereby women would have to climb to the top of a building — along with male recruits — and take their clothes off for a photo;

firefighters going out on weekends and bringing back women to stations, and sex taking place in offices; and

porn hanging inside kitchen cupboards at fire stations.

It beggars belief that this government has been relentless in trying to keep this particular report from coming to light so that it could be addressed in a bill such as this.

The firefighters union, with the support of the government, has continued over the last year and a half to try to block this particular report. On 15 June 2017 it was reported that the UFU had launched a court bid to try to stop the review and ban the publication of the report. In July it was delayed until mid-August, and if we go forward to 7 August 2017, a parliamentary inquiry into the issue actually received correspondence from the Minister for Emergency Services saying that he was using his executive privilege on behalf of government to block the report, saying that disclosure of the report would be contrary to the public interest. The government, in this house during question time and on other occasions, keeps saying, 'We initiated the report, so that makes us take the moral high ground, that makes us the ones who are running the show here', but the fact of the matter is the government has used executive privilege to stop the release of this particular report, and Victorians sure want to know why.

In September of last year the report still had not been released; it actually had been delayed for an additional four weeks. In December of last year the report still had not been released and was said to be delayed for a further month. In February we were still waiting, with the Herald Sun saying some of the participants in the review were growing increasingly agitated about ongoing delays and had contacted the commission.

If we look back to the report into Victoria Police, which the Attorney-General mentioned in his second-reading speech, we see witnesses had said that the release of the report and the subsequent discussion of recommendations and the government's support of those recommendations had actually helped them move on. Again, you would wonder why the government would be stopping this particular report from going through when it would be of great assistance to those who had been the victims of the bullying, harassment and intimidation that goes on in the MFB. It would be a great opportunity for them to put some of their demons to rest and move forward.

We can see why the government has spent so much time blocking this. We raised these issues in question time and we were rebuffed as usual. But the headline in the Age today, 'Sexism in MFB revealed', only goes to show why the government is so keen to stop any of this issue moving forward and certainly stop any of this issue being made public. At this point I want to move a reasoned amendment, which I ask to be circulated. I move:

That all the words after 'That' be omitted with the view of inserting in their place the words 'this house refuses to read this bill a second time until the house has assurances from the government that every government department and agency is covered by the bill and no government agency or department will be exempt from the provisions of the bill by way of agreements with the government'.

The reason for that reasoned amendment is that while there is bipartisan support for this bill and there have been a few discussions between me and the Special Minister of State and we were quite supportive of this bill, in the last 24 hours it has come to light that the MFB's enterprise bargaining agreeent (EBA) deal includes a veto, which says that all MFB policies, including policies relating to bullying, harassment, equal opportunity, fraud and corruption, conflict of interest and whistleblower provisions must be signed off by the union. Further, any changes to state or commonwealth laws cannot be implemented at the MFB without consultation and agreement — and the Premier was very keen to talk about consultation, but did not annunciate the fact that agreement was also a stipulation of the union.

If we are going to be talking about integrity bodies, if we are going to be talking about public interest disclosures, I want to make sure, and our side of the house wants to make sure, that every single agency and department of this government is treated equally. It appears from the demands of the union — demands which I have to say when taken in total are ones that the government has capitulated on on every occasion over the last couple of years, even to the extent that various high-level fire officers have either been pushed or have resigned as a result, including, may I say, the former Minister for Emergency Services, the member for Brunswick — that the government is looking to shield the MFB and potentially the UFU from any oversight or any opportunities for investigation if a complaint is put forward. To that end, my reasoned amendment is there to ensure that the government can give us those assurances.

One of the reasons that we have seen these house amendments from the government — and, may I say, some members may not be aware there is a provision in this bill that amends the Constitution Act 1975, which means that two-thirds of the members in this house must support this bill in order for the bill to go forward — is so that a special majority is not needed. As I said, the opposition was quite prepared to support the bill in the way that it came out, but just needed those assurances. Rather than give those assurances to the opposition and in fact to the Victorian public, the government has instead chosen to sabotage its own legislation to remove that amendment to the Constitution Act so that a special majority is no longer needed in this house. The government would rather change their own legislation than give assurances to the Victorian people that they are not trying to protect and shield the MFB and the UFU.

That speaks volumes to this house and indeed to Victorians right across the state that the government, in a display of cover-up, is continuing to pander to the UFU and Peter Marshall instead of being open, honest and transparent. This bill and the MFB EBA will be at odds with one another if the UFU's demands are going to be met, and there is no reason to think that those demands will not be met. It seems that this web of deceit, this culture of cover-up, will keep going on, and if these integrity bodies are unable to investigate claims against the UFU and the MFB, then that is a sorry state of affairs for the state of Victoria to be left in.

Having said all that, I go on to say that our bipartisan approach to this bill has been there because we do support the importance of integrity and accountability bodies in this state. Their importance cannot be overstated. Besides the obvious role of investigating improper conduct and prosecuting those who do the wrong thing, they also provide confidence to the broader community that the people who interact with government departments and agencies will be treated properly, that their taxes will be used for the right reason and not for personal gain, and that the opportunities to deliver goods and services by way of tender to the private sector will be fair in the way that they are transacted by departments and agencies. It is important that those who seek to do the wrong thing with public resources and public money understand they are likely to be caught and that the integrity bodies will be robust in their investigations. It is important that any evidence of improper conduct can be put forward and that those who are the whistleblowers, those who make those public interest disclosures, know they will be protected and will have trust that their confidentiality will be kept and their complaints will be taken seriously.

Victoria has a wide range of integrity and accountability bodies. They do provide a very robust investigation platform for those who make complaints against government agencies and government departments. We have the Independent Broad-based Anti-corruption Commission, whose role it is to investigate corruption in the public sector as well as police misconduct. It is interesting for those who were not in this house during the 56th Parliament to see Labor supporting IBAC, because I can tell you that at the time that the opposition put the notion forward, there was very little support for it from the then Labor government — the Brumby Labor government.

It was the allegations of bribery, intimidation and the misuse of funds at the ALP-dominated Brimbank City Council which really got the ball rolling and showed the need for an anti-corruption commission in this state. We called for an investigation after former member for Keilor in the Assembly, George Seitz, blew the whistle on alleged corrupt practices by Brimbank councillors, as well as by current and former members of this house. The subsequent explosive report from the Ombudsman actually gave us a shopping list of corruption and improper conduct, terms that are probably synonymous with the Labor Party more broadly, and the Ombudsman showed us that the Labor-dominated council —

The member for Dandenong raises our former state director. When he did something wrong, we sent him to Victoria Police and we had him sent to jail. That is an example of the difference between this side of the house and that side of the house. When people on our side of the house do the wrong thing, we refer them to the police and they are punished. When people are guilty of misconduct on that side of the house, they are protected, shielded and in fact lauded by this party which holds up corruption and misconduct as a badge of honour rather than something that should be condemned.

The Ombudsman's report showed the council was dysfunctional and that it was a council that was influenced by unelected Labor figures. It showed that conflicts of interest, improper use of powers, bullying and intimidation, misuse of council funds and equipment, inappropriate release of information and an improper use of electoral information were rife. The report showed inappropriate conduct by and influence by state MPs, including former MPs such as Theo Theophanous and Justin Madden, the current member for St Albans and of course the member for the then seat of Derrimut, who is sitting in this house even today, who was mentioned no less than 38 times in the Ombudsman's report. It is unclear to me why the Premier would pick that man to be the Speaker of this house when he already had form with regard to the way he conducted himself. The man who the Premier appointed to stand in judgement of all of the members of this house showed very clearly to everyone here, by bringing the name and occupation of politicians into disrepute, that he was a very poor choice because he did have form and, as I said, was mentioned no less than 38 times in this report.

It is those sorts of practices which the Herald Sun raised in 16 September 2009 when they said that:

The initial report from the Ombudsman, tabled in Parliament in May, found deep-seated corruption issues in Brimbank …

An earlier report in the Age said that the sort of behaviour by the Labor Party in that instance delivered 'dud candidates in safe seats, subverts democracy and wastes ratepayer money on vote-buying'. I would be very interested to see who that particular journalist thought were the dud candidates that have been delivered to safe seats. I have got a few of my own suggestions, and I am sure that the journalist would be quite happy to understand the sort of corrupt behaviour that was going on in Brimbank council —

The member for Mordialloc thinks it is hysterical, which as I said is par for course for the Labor Party — standard practice for the Labor Party. It is just a joke, I guess.

When we proposed the Independent Broad-based Anti-corruption Commission, it was interesting to hear on a number of occasions during question time when asked if the government was going to embrace such a body the then Premier, Mr Brumby, say:

We are pleased that we have more checks and balances in place in this state in relation to the operation of the executive, in relation to the government generally and the operation of the Parliament. I do not see any need for an independent commission against corruption.

Further on he said:

I repeat: the government does not intend to introduce an independent commission against corruption.

On 30 October 2007 — again this was a question which the Leader of the Opposition was asked previously, and the government's position on this is clear:

We will not be establishing an independent commission against corruption.

And on and on it went, with this government absolutely stymieing the idea of having a broad-based anti-corruption commission until the Premier of the day was dragged kicking and screaming to an independent review by Ms Elizabeth Proust, who said, 'You know what? With the sorts of goings-on by the Labor Party, you actually do need an independent broad-based anti-corruption commission'. The Age said it well on 4 June 2010 when they reported, and I quote:

For years, the Victorian government has insisted that the systems it has in place — an Ombudsman to oversee the public sector, the Office of Police Integrity to investigate police corruption, the Auditor-General to check financial compliance in government departments — were good enough to weed out corruption and misconduct.

But in a blow for the Premier —

and that was John Brumby —

the findings of his own high-level review into the state's anti-corruption agencies, released this week, found they were anything but. A six-month investigation by former senior bureaucrat Elizabeth Proust exposed a system that was fragmented, inefficient, and had serious gaps where corruption could easily fall through the cracks.

It went on to say:

As far as political backflips go, this one is monumental. Despite Victoria and South Australia being the last states without their own anti-corruption commissions, Brumby has spent years publicly resisting the idea of an independent corruption commission, describing them as a waste of resources and little more than a 'lawyer's picnic'.

Continuing to resist would have left the government looking as if it had something to hide.

I think we can all agree, in this house and certainly in the broader public, that they did have many things to hide.

With an election only six months away, something had to give.

'My personal view has always been against the establishment of such a mechanism', Brumby said as he announced his decision to a room full of departmental chiefs and journalists on Wednesday afternoon, less than 48 hours after receiving the Proust report.

Even though he had continually denied the need for it, his own review said that it was needed, and in a stunning backflip he eventually capitulated. Now we have Labor enthusiastically embracing the Independent Broad-based Anti-corruption Commission through this very legislation.

As far as saying that it was unnecessary, it is safe to say that there have been numerous investigations by IBAC — I suppose the most prominent one being Operation Dunham, which showed the corruption and the personal gain from public resources surrounding the ultranet project, where we saw high-level Department of Education and Training officials being found guilty of many, many cases of misconduct and personal gain, and that was but one. There are many others, and certainly there have been investigations into police conduct, into the operation of some health organisations, into TAFEs, and the list goes on and on. It is very important that that Liberal-National initiative was put in place, and it has certainly served its purpose over the intervening years.

Other agencies include the Victorian Inspectorate, which ensures the compliance of IBAC, oversees the Auditor-General, the Ombudsman and other bodies and ensures that witness rights are protected — and that is very important. When we do have accusations made against certain people, those people should be deemed to be innocent until they are proven guilty. It is important that their rights are protected. The Victorian Inspectorate also ensures that IBAC does the right thing in exercising its coercive powers.

The bill also goes to the Ombudsman, who investigates, amongst other things, complaints into actions and decisions by governments, departments and agencies and conduct by their staff. I guess the Ombudsman came into prominence most recently when a Labor whistleblower blew the whistle on the red shirts rorting investigation when it was made very clear that the government had used public money inappropriately. The Premier said that he would completely cooperate with the Ombudsman's investigation, then proceeded through his Attorney-General to attempt to stymie the Ombudsman at every turn. His words about supporting the office of the Ombudsman were complete hypocrisy, and it really shows Labor up for being hypocritical in their approach to the integrity bodies. As I said, this government has tried to block investigations into the red shirts rorting scandal at every turn even though the Premier promised to cooperate.

And may I say — and labour the point — it was not our side of politics that actually blew the whistle on this scandal; it was actually a Labor whistleblower, so I guess there is no honour amongst thieves at all. Using public money to campaign is completely inappropriate. Many, many Labor campaigners were used. They were employed by MPs who did not even know their names and had never seen them, and the campaigning was done in most cases in seats that were way, way outside those electorates they were employed to actually look after. The interesting thing is that the government have never denied that they did this. They are actually quite proud of it. They deny it was wrong, and I guess it just really gives everyone a sense of what these guys opposite think is right or wrong. They have a really warped sense of that.

I quote from a Herald Sun article from 17 February 2016, which says:

The Andrews government has executed an abrupt about-face and now will argue in the Supreme Court that Ombudsman Deborah Glass lacks the power to investigate Labor's rorts-for-votes scheme.

A week ago, Special Minister of State Gavin Jennings told Parliament the government did not intend to make submissions to the Supreme Court …

But yesterday, Mr Pakula said the matter would 'effectively operate as a test case regarding the relationship between the Ombudsman and the Parliament …

I guess we can thank the Attorney-General for helping us clarify that relationship, and I am sure he was not doing it with any ulterior motive whatsoever. It is unfortunate that Hansard cannot pick up sarcasm.

Going forward on the same issue, remembering that the government was never going to block the Ombudsman's investigation, from the Herald Sun of 18 February 2016:

Taxpayers, who saw their money misappropriated by the Labor Party in the rorts-for-votes scandal, now face legal costs as the government tries to shut down an investigation by the Ombudsman.

What amounts to a cover-up started with a letter from the Premier's right-hand man, Special Minister of State Gavin Jennings, telling Ombudsman Deborah Glass she does not have the authority to inquire into the rorts.

The article goes on to say that additional money from the taxpayer over and above the money spent on rorting the public by way of using campaigners when they should not be used will be spent on well-resourced lawyers in what appears to be a government manoeuvre to shut down the Ombudsman.

On 25 August 2016 the Herald Sun reported that the Ombudsman was ready to start probing Labor's use of taxpayer funds after getting the green light from the Supreme Court. The Supreme Court said that it was within Ms Glass's jurisdiction to follow the referral from the Legislative Council. So it looked like the Ombudsman was ready to go, but of course the government was not going to live with that. On 27 August, following the fact that the Supreme Court had paved the way for the public watchdog to investigate allegations, the Attorney-General said:

The government will carefully consider the Supreme Court's reasons for its decision before making any further comment on the matter.

It did consider the decision and then took the matter to the Court of Appeal. Following that:

In a blow to Premier Daniel Andrews, the Court of Appeal on Friday dismissed the government's second attempt to block Ombudsman Deborah Glass from investigating the … 'rorts-for-votes' scandal.

The government seemed to support that. The government's spokesperson said that:

… the decision 'effectively means' the Ombudsman must investigate and prioritise any matter referred by either house of Parliament.

But then just a short time later, in January of last year, the Attorney-General said he would go to the High Court to challenge that last month's decision. Again, when we are talking about the independence of our integrity bodies, as this bill does, the government has demonstrated time and time again that it has anything but respect for that very independence.

In January of last year, the Greens leader in the Council at the time, Greg Barber, said that it showed Labor would do anything to avoid an inquiry. In fact, the Attorney-General actually tried to drag other parties into this mess that the government had created on its own, by saying that the government was going to try to change the Legislative Council's referral to include the use of parliamentary resources entitlements by the coalition and the Greens. There had been no allegations against the Liberal Party, the National Party or the Greens. In fact, this was Labor's mess, again raised to public prominence by a Labor person. The Herald Sun raised the issue very well in January 2017 when it opined that:

The Andrews government is going to extraordinary lengths to stop the Ombudsman investigating Labor's alleged misuse of public money in the lead-up to the 2014 … election.

It went on to say that:

Labor's determination to avoid an investigation will see them waste further taxpayer [public money] exhausting legal avenues including appealing to Australia's highest court.

The Herald Sun article asked the question which many, many Victorians are also asking:

The obvious question is: what does the government have to hide?

The Age went on to say that:

Something stinks about the Andrews government's latest bid to challenge an investigation into Labor's so-called 'rorts-for-votes' scandal.

It referred to the Special Minister of State, Gavin Jennings, who said shortly after coming to office that they wanted to rebuild 'the community's confidence in the accountability and openness of government'. I will give those opposite a tip: this is not the way to do it. Trying to shut down one of your integrity bodies, trying to stop them from investigating what is clearly a rorting scandal, is not the way to inspire confidence in Victorians, not one little bit.

Going on, in May last year the Victorian Ombudsman was finally being given the green light again to investigate the Andrews government over the Labor Party's misuse of parliamentary resources. You have got to wonder how much money was wasted in the attempts to block the Ombudsman actually doing the investigation. Again, a government spokesman said that the government took all this action, the government spent all this public money and the government continued to block the Ombudsman's investigation because they were actually trying to 'protect the architecture of Victoria's integrity regime'. That is what they were doing.

I mean, we got it wrong over here; the Victorian people got it wrong. They were actually trying to protect the architecture of Victoria's integrity regime. We thought those opposite were trying to rort public funds. We did not realise that trying to nobble the integrity body, the Ombudsman, was actually just trying to protect us all from ourselves. But that is this government and these people in this government all over. The questionable behaviour of government members does show very clearly that there is a lie when it comes to saying that they respect the integrity of our independent integrity and accountability bodies.

The bill covers a number of other issues, including the Protected Disclosure Act 2012. It makes significant changes to make the pathways for making disclosures easier. It merges the Accountability and Oversight Committee with the Independent Broad-based Anti-corruption Commission Committee. We have certainly seen that there are some crossovers in those two committees. We do not oppose the merger of those two committees as long as they are adequately resourced. We also support the budgetary independence of our integrity bodies and support that part of the bill.

To sum up, the opposition does support a strong and robust integrity and accountability regime. We know that with proper oversight we can protect those who do make complaints against government agencies and departments and, indeed, even the government itself. We hope that these integrity bodies do deter those who think that they can get away with the misuse of public resources and public funds. I would take this opportunity to actually call on Labor, though, to take a serious look at the culture that it has fostered within its own ranks, where corruption and improper behaviour seem to go unchecked and in fact actually seem to be encouraged and rewarded. We have seen that time and time again. It is fine to promote these concepts of integrity and accountability, but if you do not practise them yourself — if you do not walk the walk, so to speak — then it really amounts to nothing. Victorians generally firmly believe that this government has a long way to go before it can demonstrate that it actually practises what it preaches.
Authorised by Ryan Smith MP, Suite 2, 1020 Doncaster Road, Doncaster East, VIC 3109 | © Ryan Smith MP 2014
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