Government Seeks Special Leave To Appeal To The High Court

05 January 2017

The Andrews Labor Government is seeking special leave to appeal the Court of Appeal’s decision regarding the Ombudsman’s jurisdiction to investigate a referral made by the Legislative Council.

The Government is taking this action in the High Court to protect the architecture of Victoria’s integrity regime, particularly regarding the relationship between the Ombudsman and the Victorian Parliament.

The effect of the Court of Appeal decision is that either House of the Parliament, or any Committee of the Parliament, could by a simple majority require the Ombudsman to conduct an investigation into any matter.

This could include requiring the Ombudsman to investigate the actions of private companies, non-government organisations or individuals.

If such a referral were made, the Ombudsman would then be required to prioritise that investigation over the day to day work of the Ombudsman’s office which deals with complaints by Victorians about Government departments and agencies, local councils and statutory authorities.

The Government maintains that such a reading of the Ombudsman Act 1973 fundamentally impairs the relationship between the Ombudsman and other integrity bodies, and is contrary to the principal purpose of the Ombudsman’s office laid out in the Act.

The Government is also concerned that the Legislative Council’s referral could be read as requiring the Ombudsman to investigate the conduct of Members of the Legislative Assembly including those in a previous parliament.

The Supreme Court acknowledged that where a referral or an investigation by the Ombudsman would breach long standing principles of parliamentary privilege it would be a matter for “the other House” to assert the privilege.

In line with the Supreme Court’s observation, the Government intends to assert the Legislative Assembly’s privilege in this matter when Parliament returns in February.

For balance, the Government will also use the Parliament to seek to amend the Legislative Council’s referral to include the use of members’ staff budgets and entitlements by the Liberal Party, the National Party, and the Greens Party.

The High Court consideration of this matter need not impede the Ombudsman from fulfilling her statutory obligations to report to the Parliament on the current referral forthwith.

The Ombudsman has been and remains free to conduct her investigation, and relevant Members of Parliament will continue to assist the Ombudsman, as has been the case with previous enquiries conducted by Victoria Police and the Parliament of Victoria, both of which have been concluded.

Reviewed 19 August 2020

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