Investigation of a Matter Referred from the Legislative Council on 25 November 2015
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Ordered to be published Victorian government printer Session 2014-18 P.P. No. 383 The Victorian Ombudsman respectfully acknowledges the Traditional Owners of the lands throughout Victoria and pays respect to them, their culture and their Elders past, present and future. Letter to the Legislative Council and the Legislative Assembly To The Honourable the President of the Legislative Council and The Honourable the Speaker of the Legislative Assembly Pursuant to sections 25 and 25AA of the Ombudsman Act 1973 (Vic), I present to Parliament my Investigation of a matter referred from the Legislative Council on 25 November 2015. Deborah Glass OBE Ombudsman 21 March 2018 Contents Letter of Referral from the Legislative Chapter 4. Key issues arising from the Council 25 November 2015 18 evidence 118 Were casual Electorate Officers used Chapter 1. Scope and methodology of to support political or party duties? 119 the investigation 19 Did Field Organisers campaign The question of jurisdiction 20 full-time? 120 The phases of the investigation 26 Did MPs have authority under Investigation statistics 29 section 30(4) to broaden Electorate Officers’ duties? 134 Investigation timeline 30 Can a distinction be drawn between political, party-political and party Chapter 2. Employment of Field activities? 138 Organisers as Electorate Officers 32 Did the 60:40 split breach DPS The ALP’s 2014 Victorian election guidelines? 142 campaign 33 Were accurate time-sheets submitted Field Organiser pay arrangements: to DPS? 146 The ‘60:40 split’ 66 Maps: Nominating Members and Field Chapter 5. Conclusions and observations 151 Organisers’ allocated Legislative Conclusions 152 Assembly districts 77 Conduct contravening the Members’ Summary of Field Organisers’ Guide 154 employment arrangement 91 Observations 161 Chapter 3. The political and legal setting 97 Chapter 6. Relevant reforms since 2015 163 Entitlements and oversight 98 Audit Committee Review 164 The Members’ Guide 99 Current proposals for legislative change 164 Electorate Officer duties The Parliamentary Integrity Adviser 165 – section 30(4) 102 Implementing the Hazell Review’s Parliamentary staff pooling 105 recommendations 166 Comparable rules in other Australian Chapter 7. Recommendations 168 jurisdictions 112 Codes of conduct 116 2 www.ombudsman.vic.gov.au Annexures 173 Annexure 7 196 Letter of offer for casual Electorate Annexure 1 173 Officer role Email ‘Seeking enthusiastic campaigners for 2014’, 20 November 2013 (page 1 of 2) Annexure 8 198 Parliament of Victoria Annexure 2 175 Authority to Offer Employment Email ‘2014 Field Organiser Next Steps’, form for ALP pool staff, signed by 29 November 2013 Liz Beattie MP, 9 May 2014 Annexure 3 176 Annexure 9 199 Field Organiser training document, Letter of offer for part-time ALP Pool Running sheets for Field Organiser Electorate Officer training Annexure 10 201 Annexure 4 181 Electorate Officer casual payment form, Field Organiser training document, signed by the Hon John Lenders MLC ‘2014 Victorian Field Program Field Organiser Roles & Responsibilities’ Annexure 11 202 Electorate Officer casual payment form, Annexure 5 191 signed by Shaun Leane MLC Parliament of Victoria, Position description – Electorate Officer, Victorian Ombudsman’s Parliamentary July 2013 Reports tabled since April 2014 203 Annexure 6 195 Parliament of Victoria, Authority to Offer Employment form, signed by Liz Beattie MP table of contents 3 Foreword This investigation arose from a referral by I make no criticism of the campaign or the Parliament, only the fourth such case in field organisers. But while some electorate the 45-year history of the Ombudsman’s officer work was done for some Members of Office. It is occasionally the role of Parliament, the arrangement to employ field Parliament’s Ombudsman to become organisers as electorate officers was an artifice involved in an investigation that is inherently to secure partial payment for the campaign political. And so it was in this case. Non- out of parliamentary funds, and was wrong. ALP members in the Legislative Council used their majority to pass a resolution The evidence before us is that MPs who that I investigate whether ALP Members participated in the arrangement and signed of Parliament misused their staff budget time-sheets believed it was legitimate and entitlements prior to the 2014 state election, that they were contributing to an approved contrary to Parliament’s Members’ Guide. pooling arrangement. But while they received little or no personal benefit from the use of Neither I, nor any of the investigators working parliamentary funds for campaigning purposes, on this case, has any political affiliation. Our which almost invariably benefited the election task was to get to the truth of the matter prospects of others, 21 Members of the 57th – were entitlements misused? If so, what Parliament breached the Members’ Guide. happened and who was responsible? The principal architect of the arrangement Answering this has been like trying to was the former Leader of the Opposition complete a jigsaw puzzle from which, at the in the Legislative Council, the Hon John outset, you are not sure how many pieces Lenders. While he too derived no personal are astray and whether you will have enough benefit from the campaign as he was, in to see the image. In the end, although any event, retiring, he carries the greatest some pieces are missing because of claims share of responsibility for breaches of the of parliamentary privilege and exclusive Guide. There is undoubtedly a blurred line cognisance, or simply loss of memory as some between permissible and impermissible witnesses asserted, a clear picture emerged. uses of parliamentary funds, and what is or is not political activity prohibited by It was a picture of a well-organised campaign the Guide. But in seeking to maximise by the ALP to recruit and deploy full-time the use of resources available to the field organisers in the run-up to the 2014 Party, Mr Lenders crossed the line. Victorian state election, of which 21 were employed part-time as electorate officers and The ALP was, of course, the principal paid some $388,000 out of parliamentary beneficiary of these funds. While I do not funds. A few did, indeed, do electorate make formal recommendations to non-public officer work and many claimed it was bodies, I consider that public confidence impossible to distinguish between the roles. would be well served by them paying the money back. I am pleased that following a review of the conclusions of the draft report, they have offered to do so. 4 www.ombudsman.vic.gov.au During the investigation we heard many Trust in our politicians is declining, and risks views about the impracticality of the ‘party diminishing further with allegations of misuse or political’ restriction in the Members’ of public funds. The reputation of Parliament Guide, its lack of visibility or enforceability, would be greatly enhanced if an independent and different interpretations of pooling agency was clearly empowered to deal with arrangements. Field organisers were not, in such matters. Whatever Parliament’s future fact, paid from pooled funds, but the fact intentions regarding the Ombudsman’s that such arrangements existed created jurisdiction, the public debate in this case confusion. I believe these factors contributed confirms the importance of having an to the environment in which these breaches independent body, able to investigate occurred, and while I commend the reforms allegations without fear or favour – and to give that have been made or proposed since these short shrift to the spurious – when its own events in 2014, more needs to be done. members’ integrity is called into question. I must finally reflect on the litigation that delayed this investigation for over a year. Deborah Glass Successive courts confirmed that the Ombudsman Ombudsman has jurisdiction to investigate members of Parliament when Parliament itself makes the referral. I do not criticise the legal proceedings, which I initiated, and which eventually provided much- needed clarity to an issue that has caused controversy over the past decade. But while the question of jurisdiction delayed the investigation, the Legislative Assembly’s assertion of exclusive cognisance – in effect that I cannot investigate members of the Assembly – was detrimental to it. I did not regard the scope of my investigation to be limited to the Legislative Council, but I decided not to test my view in the courts; enough time and public money had been spent on legal proceedings, and I could still investigate the matter by focusing on Council members. But this limited my use of coercive powers. While I can draw cogent conclusions from the evidence available, there are gaps in the evidence of which Parliament should be aware. foreword 5 Executive summary The Referral and police 3. These allegations had also been referred to Victoria Police in September 2015. enquiries While the Ombudsman Act 1973 (Vic) 1. On 25 November 2015, the Legislative requires me to investigate and report Council of the Parliament of Victoria ‘forthwith’ on matters referred from passed the following resolution: the Parliament, it also requires me not to perform my functions if doing so That, pursuant to section 16 of the would prejudice a criminal investigation. Ombudsman Act 1973, this House refers I consulted with Victoria Police, which the following matter to the Ombudsman for investigation and report: requested that my investigation remain on hold while its enquiries were (1) Allegations that ALP members of progressing. On 8 June 2016, Victoria the Victorian Parliament misused Police advised me that its review of the members’ staff budget entitlements, against the provisions of the allegations had concluded and it would Parliament of Victoria Members not take further action. Guide, that is, ‘Electorate officers are employees of the Parliament of Victoria, and are directly accountable Litigation and claims of to the member in whose electorate exclusive cognisance office they work… These positions are provided to support the member 4.