The Victorian Ombudsman Deborah Glass will now consider an official referral from the Legislative Council for a new investigation after a private member’s motion was successfully passed. The referral requires, amongst other things, the Ombudsman to investigate the “Red Shirts” scheme, including the role of the Premier in relation to the scheme.
The “Red Shirts” scheme was the subject of a previous Ombudsman investigation report, which the Ombudsman tabled in 2018 with her findings.
The referral also seeks to examine matters related to an ongoing joint Victorian Ombudsman and Independent Broad-based Anti-corruption Commission investigation into misuse of public funds associated with branch stacking.
Ombudsman Deborah Glass said while Parliament could refer any matter to her office for investigation, she maintained her discretion and independence under the Ombudsman Act as to how she would investigate.
Ombudsman Act deals with parliamentary complaints under Division 2, Section 16. It reads as below:
Investigations referred by Parliament
(1) At any time—
(a) the Legislative Council or a committee of the Legislative Council;
(b) the Legislative Assembly or a committee of the Legislative Assembly; or
(c) a joint committee of both Houses of Parliament—
may refer to the Ombudsman for investigation and report any matter, other than a matter concerning a judicial proceeding, which that House or committee considers should be investigated by the Ombudsman.
(2) Where a matter is referred to the Ombudsman pursuant to subsection (1), the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon.
When Adem Somyurek said to the media the Ombudsman is legally bound to refer the matter to IBAC, he was perhaps relying on sub-section (2) of Section 16 looking at the word “shall, notwithstanding..”.
It is noteworthy when the Ombudsman Deborah Glass investigated the matter last time, she ran into a wall of silence from many MPs as the authority of ordering an investigation by the upper house into the conduct of lower house MPs was challenged.
The Ombudsman referred to the issue she faced and how she dealt with it in her statement at the time she presented her report of the investigation saying as below:
“… the Legislative Assembly’s assertion of exclusive cognisance – that the upper house did not have the powers to launch an investigation into members of the lower house – was a limiting factor in the investigation.
“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.”
Adem Somyurek’s continues to call for Premier Daniel Andrews to be investigated for his role in the scheme because he claims Daniel Andrews was the architect of it not John Lenders as found by the Ombudsman in her 2018 report.
Adem’s motion (passed by the house) expressly includes premier’s role to be investigated along with an investigation into his ‘taxpayer-funded social media unit staff.
The motion said:
That this house:
(1) notes the resolution of the Council on Wednesday, 17 June 2020, referring a matter to the Ombudsman has led to Operation Watts, a coordinated investigation that the Ombudsman is undertaking with the Independent Broad-based Anti-corruption Commission (IBAC) into a range of matters including allegations of branch stacking aired in media reports in 2020;
(2) further to that resolution, refers the following matters, pursuant to section 16 of the Ombudsman Act 1973, as part of an expanded investigation:
(a) the red shirts scheme, including the role of the then opposition leader, the Honourable Daniel Andrews MP, in designing, propagating and facilitating the scheme;
(b) all electorate officers and ministerial advisers performing factional tasks during work hours from all factions of the Australian Labor Party (ALP);
(c) the extent of branch-stacking activities and funding of branch-stacking activities, in particular whether government funds have been misdirected to pay for memberships from electorate office budgets, including, but not limited to, through arrangements for the provision of printing, office supplies or other services;
(d) the allegations in the 14 August 2021 article published in the Age titled ‘The chosen few: how Victoria is really governed’ that ALP activists are ‘stacked’ into the public service thus compromising objectivity and professionalism and increasing the risk of corruption;
(e) the Premier’s taxpayer-funded social media unit staff;
(f) the monetising of factional politics through the new trend of occupying the dual role of lobbyists/faction powerbroker to ensure that factional power over members is not misused for personal financial gain;
(3) requires the Ombudsman to consider her powers and obligations under the Ombudsman Act 1973 to refer matters to and share information with IBAC and other integrity bodies with a view to expanding the scope of Operation Watts to include the matters referred to in paragraph (2);
and requires the Clerk to write to the Victorian Ombudsman and the IBAC Commissioner to convey the terms of this resolution.
Adem Somyurek believes the Ombudsman is legally bound to refer the matter to IBAC, while the Ombudsman says she has discretion to act as she deems appropriate.
Ms Glass has said she would consult with IBAC on some of the matters in the referral including those in relation to her joint investigation with IBAC, Operation Watts.
“I will consider the extent to which the matters subject of the referral have already been investigated or are currently being investigated,” Ms Glass said.
“The public needs to have confidence that public resources are not being misused for political ends, and, as always, any investigation I lead will be independent and based on evidence.
“I have a discretion to investigate as I see fit, and I will refer matters and share information as appropriate and in accordance with the Ombudsman Act” Ms Glass added.
Axiomatically, the red shirts scandal is not going anywhere yet.