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Matters Concerning the Minister for Small Business, Innovation and Trade

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Matters Concerning the Minister for Small Business, Innovation and Trade Matters concerning the Minister for Small Business, Innovation and Trade Report of the Secretary of the Department of Premier and Cabinet 21 July 2015 1 Introduction 1.1 Background On 21 May 2015, a Ministerial adviser to the Minister for Small Business, Innovation and Trade, Minister Somyurek (Minister) made a formal complaint to the Office of the Premier about alleged misconduct by the Minister. The complaint alleged inappropriate and threatening behaviour. On 23 May 2015, the Premier met with the Minister to discuss the complaint. The Minister denied the allegations. Consistent with the process outlined in the Victorian Ministerial Code of Conduct for Ministers and Parliamentary Secretaries (Code) (see section 4.3 below), on 23 May 2015 the Premier referred the allegations to me for investigation and advice. In particular, the Premier requested that I initiate an inquiry (Inquiry) into the alleged incidents of inappropriate behaviour and that the Inquiry: examine the operation of the Office of the Minister, including its management practices, capability and adherence to the Victorian public sector values; and identify, investigate and make findings of fact about the alleged incidents and determine whether there are any matters appropriate for referral to any other authorities. The Premier stood the Minister aside from his position pending the outcome of the Inquiry. 1.2 The Inquiry To inform the Inquiry, I retained: Mr Peter Allen to examine the operation of the Office of the Minister, including its management practices, capability and adherence to the Victorian public sector values (Review). The Review terms of reference relevantly provided as follows: “The Secretary has engaged Mr Allen to conduct a capability review of the Office in accordance with the Australian Public Service methodology. The review will consider, and identify any constraints arising from, the Office’s: (a) management practices; (b) capability; and (c) adherence to values consistent with the Public Sector Values.” His Honour Judge Michael Strong to undertake an investigation into the alleged incidents of inappropriate behaviour and determine whether there are any matters appropriate for referral to other Victorian authorities (Investigation). The Investigation terms of reference relevantly provided as follows: “The Secretary has engaged [Judge] Strong to: Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 2 (a) identify, investigate, and make findings of fact in relation to, any allegations by officers employed in the Minister’s Office of conduct by the Minister, occurring since February 2015 [i.e. until 20 May 2015], that has adversely affected or could adversely affect the health, safety or well‐being of such dofficers; an (b) advise the Secretary as to whether the facts as established are sufficient to warrant the referral of any matter to an appropriate authority.” Mr Allen and Judge Strong were also required to adhere to the following principles in conducting the Inquiry: any findings of fact should be made on the balance of probabilities, in the sense explained by the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 (see section 1.3 below); procedural fairness should be afforded to all parties; and the process should be conducted confidentially. The process could otherwise be conducted as considered appropriate by Mr Allen and Judge Strong. The full Terms of Reference for the Investigation and Review are provided at Attachment A. 1.3 Standard of proof for the Investigation and the Review The Investigation and Review were asked to make findings by reference to the civil standard of probabilities. In civil disputes in Australia, including disputes between employers and employees, judges are required to make findings of fact on the balance of probabilities. The civil standard applies even if a dispute requires the court to make findings about whether allegations of criminal conduct or fraud are proved. Reflecting the conventional perception that members of society do not ordinarily engage in fraudulent or criminal conduct, the High Court confirmed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd that, in these cases, strong evidence is required to establish facts relating to criminal conduct or fraud in civil litigation. Judge Strong explained that the way he had applied Neat Holdings was that: “… the strength of the evidence necessary to establish a fact … one th balance of probabilities may vary according to the gravity of the conduct alleged and the possible consequences for an individual of an adverse finding. … I have … proceeded on the assumption that an aggregation of adverse findings might adversely affect the Minister’s ministerial career and reputation. I have therefore approached any possible findings adverse to the Minister with the principle stated by the High Court firmly in mind.” Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 3 2 Overview of the Review The Report prepared by Mr Allen is at Attachment B. 2.1 Context Using the Australian Public Service Commission’s Capability Review methodology, Mr Allen’s Review focused on the Ministerial Office’s capability and performance, including areas of strength, areas assessed as ‘work in progress’ requiring further attention and development, and areas of serious concern requiring priority attention. The Review provides important context to the Inquiry and ensures that the Premier has all relevant material before him when making a determination about how to respond to the allegations made against the Minister. 2.2 Process and methodology The methodology adopted by the Review involved the adaptation and application of the performance review framework developed by the Australian Public Service Commission and the Victorian Public Sector Values published by the Victorian Public Sector Commission. Adaptation of the performance review framework involved disapplying the value of “impartiality”, which does not apply in a Ministerial Office context. Mr Allen undertook 15 interviews with the Minister, staff working in the Minister’s office, relevant senior officers employed in the Department of Economic Development, Jobs, Transport and Resources, advisers in other Ministers’ offices and individuals involved in establishing and supporting Ministerial offices. Staff working in the Minister’s office were asked to assess how the Office was performing against eleven capabilities, and the sMinister wa asked to comment on the assessment that those staff had made. The Review also undertook research and analysis into the operations of Ministerial offices in Australia. Copies of the draft report were provided to me, the Minister and the Chief of Staff for comment before Mr Allen finalised the Review report. 2.3 Summary of Review findings The Review found that while the Office was relatively new with comparatively inexperienced staff, it operated in a very professional manner. Although individuals within the Office had experience working in national or State/Territory political offices, none had previous Victorian Government experience. There was ax ofmi experiences and capabilities within the team, with the Office being on a ‘steep learning curve’. The Review’s dominant theme relating to the Office’s capability and performance was a positive assessment of professional dealings with and performance from the Minister, Ministerial advisers and Office as a whole. Senior department officials in regular contact with the Minister and his Office were “without exception” positive in their assessment of the performance of the Minister’s Office and provided an overall assessment that the Minister was delivering envisaged outcomes, with the requisite advice and support from his Office. Particular strengths identified by the Review include: Matters concerning the Minister for Small Business, Innovation and Trade – July 2015 4 its capability to identify and focus on delivery of the Government’s and the Minister’s priorities; the Office having delivery plans in place consistent with the Minister’s and the Government’s strategy; a unifying culture had been established in the Office that promotes energy, enthusiasm and pride; and the Office includes role models that act with integrity, confidence and self‐awareness and a desire to achieve results. A number of areas were assessed as ‘work in progress’, requiring further attention and development, including: the Office’s capability to deliver the Minister’s and whole of government objectives; articulating and communicating a strategy across the Office to deliver the Government’s policy commitments in relation to small business, innovation and trade; clarifying within the Office what success looks like and establishing benchmarks of successful achievement; strengthening the Office’s capability to work across government to deliver priority policy commitments; and building a shared commitment within the Office to continuous improvement, effective change management and overcoming resistance. The Review identified two areas as requiring “priority attention”: clarification of roles and responsibilities within the Office and between the Office and the Minister, and developing procedures and mechanisms to address performance problems in the Office; and developing a transparent and consistent approach to performance management within the Office, alongside a capability to identify and nurture talent. The Review noted that the Minister “broadly
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