Thursday, 2 November 2023

Bills

Special Investigator Repeal Bill 2023

Committed.

Committee

Clause 1 (14:18)

Minister, why did the DPP make the decision not to bring charges rather than bring in an interstate DPP so there could be no perception of a conflict of interest?

Mr Mulholland, the legislation provided for the decision to lie with the DPP. It is not really relevant to the bill that we are doing today. I assume you would accept that.

Evan MULHOLLAND: It’s entirely relevant.

Jaclyn SYMES: Entirely relevant? What section of the bill would you think you would be referring to? We are in clause 1. I am usually up for a bit of a chat, so we can have a bit of a conversation about this. It was discussed in my summing-up, and I think some government members referred to it as well ‍– the DPP’s decision not to authorise briefs presented to her by the Special Investigator. Her response was detailed in a report that has been made available. It was tabled in Parliament on 22 June, and it set out all of her reasons for not authorising the two briefs that were presented to her by the Office of the Special Investigator. It outlined her reasons. I assume you have got that. I can table it for the interests of the house if you have not read that.

Minister, isn’t it a fact that not a single person will be held accountable for the greatest legal scandal in Victorian history?

You are asking for an opinion, Mr Mulholland, but what you are also implying by the nature of your question is that to allow a prosecution to proceed that is not going to succeed or result in a conviction is somehow undoing the circumstances that you have described as nobody being held accountable. The 1000-page report from the royal commission and the recommendations therein provided a lot of opportunities for improvement. With that was an acknowledgement that the behaviour was incredibly inappropriate and undermined our justice system, and people have taken responsibility for that. In terms of criminal prosecutions, which is what this is about, the advice from the material that was presented to the DPP is that a conviction would not be secured. There was no reasonable prospect of a conviction – so, a jury deciding that somebody had met the elements of a criminal offence to stand up in a court.

As I said, you are asking for an opinion, but it is a hypothetical to suggest that by me or anybody else ignoring the advice of the DPP and this somehow going to a court of law, on the face of it and from the advice of four separate prosecutors it would not result in any convictions – I am not quite sure how we get to the point that you are trying to make. I am only assuming that you mean a guilty conviction in a court of law when you use the language ‘held accountable’. I cannot work backwards from a guilty conviction and say we can get to that end when we have been told that that is not going to happen.

I just thought I would follow up on that. Gavin Silbert KC said:

Gobbo offered to plead guilty and give evidence now. What more do you need than that …

in regard to the DPP not laying charges. Isn’t it a fact that the DPP could have brought charges based on what we know?

Again, I am a little confused by the flow of that question, and it happened a lot in your contribution to the debate. You are choosing or reading out components of the royal commission recommendations, components of what people have said or facts without really the full context. I think both you and Ms Bath referred to the suggestion that Ms Gobbo would plead guilty, and therefore your contention is that that should lead to the prosecution proceeding. What you have failed to mention is that in order for that to proceed, my understanding is that conditions were sought in relation to pleading guilty, so it very much calls into question the credibility of the evidence that would be provided by that witness.

I do not want to spend this committee stage putting myself in the shoes of the DPP or indeed the OSI. I am not the arbitrator of these two individuals. There has been plenty of commentary from outside this place. I have full confidence in the DPP in the way that she conducted her analysis of the information that was presented. She did it with other experts and that was the decision she arrived at, and frankly that is the decision that the OSI accepted. They wrote a report and said they did not necessarily agree with her assessment, but they accepted her decision and therefore suggested to me that the office should be wound up. I confirmed that advice with the implementation monitor, who agreed that it should be, and that is where the repeal bill has its origins.

Former Premier Andrews said of Mr Nettle:

Investigators don’t make good prosecutors …

and that:

There needs to be a separation. If you have investigated the matter, you are altogether too close to it to be making decisions …

In response, there was an open letter signed by around 30 senior Victorian barristers. They said the comments should never have been made in respect to such a distinguished and well-respected jurist such as Mr Nettle, describing the comments as ‘misguided, wrong and inappropriate’. Does the now Allan government stand by Mr Andrews’s comments?

It is not for me to stand by anyone’s comments, but what I would draw your attention to, Mr Mulholland, is the well-accepted position across many jurisdictions – and in fact it has been tested to be the appropriate course of action – that investigators are not best placed to be the ones to decide whether a prosecution proceeds or not. There are a range of reasons for that. Probably the most basic explanation is that in an investigation you are presented with a range of views, a range of information, and you can draw a conclusion, but having an assessment of what is admissible in court, it is difficult for you to then form a view based on the information that can be put to a court.

Again, there is no doubt people have acted poorly, people have acted terribly. There is a massive fallout in the state of Victoria. It has cost us millions of dollars. You have got some people saying, ‘Well, the ends justify the means, because we locked up the bad guys and it stopped an underworld war.’ That is not a position that I subscribe to, but they should never have acted in a way that went outside the justice system. People acknowledge that they did. Did that amount to criminal conduct? The briefs of evidence that examined that particular question that went to the DPP were what she based her decision on, along with three others, to determine that that should not proceed to the courts.

In relation to other jurisdictions and indeed other like bodies here in Victoria, a lot of them have seen the inherent conflict or the inherent problems of being the investigator and putting so much work into it and then being the one that makes a decision for it to proceed, which is not best practice. The office of the IBAC in Victoria has internal policies to ensure that they never put themselves in that position. They always, in relation to serious criminal conduct, ask the DPP for the view in relation to whether it should proceed or not. WorkSafe do exactly the same. We had an entire inquiry in Queensland which looked at an issue where the integrity agency up there who investigated the matter then tried to proceed with a prosecution, because they had those powers, and it just fell over because they did not meet the criminal standard of a court.

I stand by the position, as is evidenced and supported by most of the examples that are like the OSI, that you should not be the investigator and the prosecutor. Over the top of all of that is that is exactly what the royal commission recommended. They said, ‘You should set up an OSI.’ And I will caveat that: they also were confident that there would be criminal charges. If you read the report, it certainly was not ‘Go and set up an OSI so that there can be criminal prosecutions’; it was ‘I have not been able to do a full examination of these matters. The OSI perhaps could tie up loose ends and go and see if there are any criminal matters.’ But it did not give the flavour that that would be or should be the end result. In fact it has turned out that it is not, but that is not unexpected for a lot of people that were close to this.

I know and I understand how people are angry about this, and they would like a full stop that resulted in people serving jail time or at least fronting up to court, but what has been presented to the DPP is that we cannot get to that outcome. We are not going to create a situation where we would go against the DPP’s advice or try and manoeuvre ourselves by getting other people to look at it to proceed to get an outcome that we are advised we cannot reach. It would be a waste of taxpayer money, and I think we would be condemned for doing so.

I just have a couple of questions. This bill vests all of the assets held by the OSI into that of the state, including any freedom-of-information requests. Does that also include requests made by the OSI to other public entities?

I am advised that there are none outstanding.

That pre-empts my next question. If there are none outstanding, that is fine. With the reports prepared for consideration by the DPP, will they be included with the records vested to the Department of Justice and Community Safety?

Yes.

One final question: will they be accessible by the Victorian Inspectorate, pursuant to clause 47?

Yes, they will be available as appropriate for the inspectorate. Another matter that I think people raised in debate in relation to if there is any new information or additional evidence, IBAC would also under their existing powers retain the ability to obtain that information.

Clause agreed to; clauses 2 to 72 agreed to.

Reported to house without amendment.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (14:34): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (14:34): I move:

That the bill be now read a third time.

The DEPUTY PRESIDENT: The question is:

That the bill be now read a third time and do pass.

Council divided on question:

Ayes (20): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Sheena Watt

Noes (13): Matthew Bach, Melina Bath, Jeff Bourman, Gaelle Broad, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Evan Mulholland, Rikkie-Lee Tyrrell

Question agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message to inform them that the bill has been agreed to without amendment.