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Lost ? - Like most such Inquiries in Victoria

The Victorian Parliamentary Disability Inquiry

Will this be a Lost Opportunity?

- A Failure to Separate Tasks, Responsibilities and Authorities –

The outline statement announcing the Parliamentary Inquiry into abuse in the disability sector in Victoria raises questionable relationship between the inquiry to be undertaken by the Family and Community Development Committee of the Victorian Parliament (the FCDC) and the current Victorian Ombudsman’s investigation into the disability sector.

The Ombudsman’s investigation commenced in December 2014.  However, it was only on 2 March 2015 that the Ombudsman published the Terms of References for the investigation despite submissions having been taken since December 2014.  The March statement advised the outcomes of the investigation would report in two phases.  Phase 1 is due to be ‘released in the first half year’ (2015) and Phase 2 is due to ‘be tabled in the second half of the year’ (2015).

The Victorian Parliamentary inquiry was not announced until 5 May 2015 with the principal Term of Reference – ‘Why abuse is not reported or acted upon; and how it can be prevented’, along with other associated factors.  

However, also included in the published statement announcing the Parliamentary Inquiry was advice to the FCDC that - ‘In undertaking the inquiry, the Committee should: (i) seek not to prejudice any investigations being undertaken by the Ombudsman or any Victorian Government agencies or any legal proceeding, and (ii) work cooperatively with the Ombudsman to avoid unnecessary duplication.’  Further, that the ‘Committee should have regard to any preliminary findings, recommendations or advice from the Ombudsman’s investigation …’’

The writers note that the Parliamentary Inquiry is to be also conducted in two stages, the first leading to an interim report by 31 July 2015 while the second is designated as being due on 1 March 2016.

Given the advice provided to the FCDC, along with the relative timing and phasing of the Ombudsman’s reports and those of the FCDC - What then are the writers’ concerns in terms of a possible questionable relationship between the Ombudsman’s investigation and the FCDC’s inquiry?

The writers’ contend there are three principal concerns:

  • The first relates to what the writers describe as a question of genuine intent
  • The second relates to the notion of independence
  • The third relates to process and outcomes

The matter of genuine intent

Although the Ombudsman’s intent to genuinely address the matters identified by her through her investigation and the tasks allocated by the Parliament to the FCDC must be accepted as genuine, the writers argue that the individual intent is not the concern.

What they do argue however, is a significant concern that the FCDC has been given what can only be described as strict ‘riding instructions’, of being required:

  • Not to prejudice any investigations being undertaken by the Ombudsman or any Victorian Government agencies or any legal proceedings.
  • To work cooperatively with the Ombudsman to avoid unnecessary duplication.
  • To have regard to any preliminary findings, recommendations or advice from the Ombudsman’s investigation.

The writers do not question the legitimacy of the FCDC being required to have regard for any legal proceedings that might be occurring as they do understand the need to take account of not deliberately or inadvertently, prejudicing matters that may be before the courts.

However, they do question the requirement imposed on the work of the FCDC in terms of not prejudicing the Ombudsman’s investigation or any other investigations being undertaken by any Victorian Government Agencies.

The writers argue, in the strongest way possible, that the Ombudsman’s investigation and the FCDC’s inquiry must be seen to be, and must be, separate activities.  Neither should be influenced by or work hand-in glove with the other.  To require the FCDC to not prejudice any investigations being undertaken by the Ombudsman, to work cooperatively with the Ombudsman in order to avoid unnecessary duplication and to have regard to any preliminary findings, recommendations or advice from the Ombudsman’s investigation, compromises the work of the FCDC and any findings it may make.

Further, the requirement of working ‘cooperatively with the Ombudsman’ must be taken to mean that the Ombudsman’s investigation somehow takes precedence over whatever path the FCDC may want to take.  The requirement for the FCDC to, ‘have regard to any preliminary findings, recommendations or advice from the Ombudsman’s investigation’, must be taken to suggest that the FCDC is limited in making contrary findings, recommendations or providing alternative advice.

The writers contend that to restrict the FCDC’s work in the way described indicates the Parliamentary Inquiry is subservient to the Ombudsman’s investigation.  Further, that the opportunity to provide a comparative set of findings and recommendations will be denied.

On the matter of ‘investigations being undertaken by any Victorian Government Agencies’ the writers submit that the same arguments as applying to the relationship between the FCDC’s inquiry and the Ombudsman’s investigation also apply.  This is of particular import given that the writers are aware of a review being undertaken by KPMG for the Department of Health and Human Services (DHHS) into the Yooralla organisation.  Further, the writers are also aware of an inquiry being undertaken by the Children’s Commissioner into the exploitation of children in residential care.

Given each of these activities are independent in their own right, it must also apply that neither should be considered as having the potential to control or influence the activities of the FCDC.

The notion of independence

Underpinning the challenge to the restrictions imposed on the FCDC is the notion of independence.  As a person appointed by the Governor in Council, the Ombudsman is in effect independent of Parliament, albeit that the Ombudsman must submit an annual report to Parliament on the ‘performance of his or her functions during each financial year’.  By contrast, the FCDC, as a committee appointed by the Parliament, is subject to the directions established by Parliament.  Given the differing arrangements and in particular the concept of the separation of powers and responsibilities, the writers argue that to seek to make the work of the FCDC contingent on the Ombudsman’s investigation, compromises the independence of the FCDC as a Parliamentary Committee.  Thus, essentially this makes the Parliament subservient to the work being undertaken by the Ombudsman.

As such, the restrictions imposed on the FCDC totally ignore the significance of the differing process.

The matter of process and outcomes

A significant standard feature of the process of Parliamentary Committees, and assumed by the writers to apply to the FCDC, is that public hearings are undertaken and individuals have the opportunity to formally present in an open forum, with transcripts being made publicly available.  Further, submissions are also made public.  Additional to the open hearing, by virtue of the fact the FCDC exclusively comprises Members of Parliament (MPs), the MPs are ultimately part of the decision-making process associated with the recommendations of the FCDC through the parliamentary processes.

Despite the significant advantages of the above, the FCDC has been forced into a position subservient to the Ombudsman’s investigation.  

The evidence for the above is the obvious and significant relationships between the timelines announced by the Ombudsman for the release of her reports and the announcement concerning the release of reports by the FCDC.

To emphasise, the writers note the following:

  • The first phase report of the Ombudsman’s investigation has been announced as due for release ‘in the first part of 2015’.
  • The first stage report of the FCDC has been announced for release ‘by no later than 31 July 2015.’
  • The instruction to the FCDC is that the FCDC ‘should have regard to any preliminary findings, recommendations or advice from the Ombudsman’s investigation.

It is emphasised further by the fact that the FCDC

  • Has been instructed to ‘have regard to the final report, findings and recommendations of the Ombudsman’s investigation’.
  • Final report is not due until 1 March 2016, which is post the timing of the Ombudsman’s final report being advised as due to ‘be tabled in the second half of the year’ (2015).

Hence, the logical conclusion is that the FCDC is largely restricted in making any findings, recommendations or advice that are independent of either of the Ombudsman’s reports.  As such, the independence of the FCDC is totally compromised. 

The failure to separate the tasks, responsibilities and authorities vis-à-vis the Ombudsman’s investigation and the activities of the FCDC, Wcan be translated into a lost opportunity.

By comparison, it is significant to note that the Federal Senate Inquiry into the disability sector has had no such restrictions imposed on its work, responsibilities and authorities.  The Senate Inquiry is not required to take into account work being undertaken by other bodies, either in the Federal jurisdictions or other jurisdictions.   

However, of equal consideration is the very negative message that the unnecessary and inappropriate links forced on the FCDC send to those who have placed so much hope in the work and outcomes of the FCDC – people with disabilities, their families, advocates and those concerned in the once in a generation opportunity to transform disability.

A cloud now hangs over the work of the Family and Community Development Committee.

Max Jackson                                                   Margaret Ryan         

Partner                                                          Partner

JacksonRyan Partners                                      JacksonRyan Partners

Mobile 0413 040 654                                        Mobile 0412 409 610

max@jacksonryan.com.au                                 margaret@jacksonryan.com.au

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