Plaintiff v First Defendant

Mr R Niall QC, the Solicitor-General, with Ms J Watson

1 By a proceeding commenced by originating motion on 29 January 2016, the plaintiff, in her capacity as the Ombudsman for the State of Victoria, applies under s 27 of the Ombudsman Act 1973[1] for a determination as to whether she has jurisdiction to conduct a certain investigation on which she has embarked.[2] The investigation relates to a referral made to her on 25 November 2015 by the Legislative Council of Victoria in reliance on s 16 of the Ombudsman Act 1973.

2 The question before the Court is principally a question of the proper interpretation of the Ombudsman Act 1973 and certain related Acts. Section 16 of the Ombudsman Act 1973 is of central relevance. However, it will be necessary to consider s 16 in its entire statutory context; to have regard to the relevant legislative history; and to take into account the functions and privileges of the Victorian Parliament, its Houses, its committees and its individual members.

3 At the time of the referral,[3] s 16 of the Ombudsman Act 1973 provided:

(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 him.

(2) Where a matter is referred to him pursuant to subsection (1), the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon.

Note

Section 25AB provides for the manner of reporting.

4 The resolution of the Legislative Council of 25 November 2015 was in the following terms:

This House refers the following matter for investigation and report:

(1) allegations that ALP members of the Victorian Parliament misused Members' staff budget entitlements, against the provisions of the Parliament of Victoria Members Guide, that is, "Electorate Officers are employees of the Parliament of Victoria, and are directly accountable to the Member in whose electorate office they work...These positions are provided to support the Member in their parliamentary and electorate duties. The Parliament does not fund positions to support the Member's political or party duties"; and

(2) any other breach of applicable policies, laws or codes in relation to these allegations.

5 In an affidavit sworn on 28 January 2016 in support of the originating motion, the plaintiff indicates that, in her view, any investigation she conducts pursuant to the Parliamentary referral would include the following matters:[4]

(a) whether staff engaged in campaign work for the ALP or other party political work related to the 2014 Victorian election campaign were paid or partly paid by Parliamentary funds, which are set aside for electorate officer work;

(b) whether any Members of Parliament signed payment forms for electorate staff when such staff did not perform any work as an electorate officer for that Member;

(c) whether any parliamentary rules in relation to the use of electorate officers were breached;

(d) whether current parliamentary rules in relation to the use of electorate officers are adequate.

6 The plaintiff now takes a neutral position as to whether she does or does not have jurisdiction to conduct an investigation pursuant to the referral. She filed written submissions dated 9 February 2016 setting out arguments both for and against jurisdiction. At that stage, there was no other party to the proceeding. Had the proceeding remained in the same state, the Court would not have had the benefit of a proponent for any view nor of a contradictor of any view.[5] Fortunately, however, applications for joinder were later made on behalf of the President of the Legislative Council and on behalf of the Attorney-General for the State of Victoria. They wished to argue for and against jurisdiction, respectively. By consent orders made on 7 March 2016, the President of the Legislative Council was joined as the first defendant and the Attorney-General for the State of Victoria was joined as the second defendant. They have duly taken up opposing positions. Pursuant to an agreed timetable, the Attorney-General filed written submissions arguing against jurisdiction on 7 April 2016; the President filed written submissions arguing in favour of jurisdiction on 18 April 2016; the Attorney-General filed a reply on 22 April 2016; and the matter came on for hearing on 9 and 10 May 2016. All three parties were represented by senior and junior counsel throughout. At the hearing, the plaintiff maintained her neutral position. The defendants' counsel spoke to their respective written submissions. At the end of the hearing, a further agreed timetable was set for the filing and service of any further written submissions of the parties on three designated topics. Subject to that further timetable, I reserved my decision. The Attorney-General filed further submissions on the three topics on 20 May 2016. The President of the Legislative Council filed answering submissions on 7 June 2016. The plaintiff indicated that she did not propose to make any further submissions.

7 As mentioned above, the question for determination requires the consideration of various provisions of several Acts of the Victorian Parliament. The Acts requiring consideration include, in addition to the Ombudsman Act 1973 itself, the Independent Broad-Based Anti-Corruption Commission Act 2011 ('the IBAC Act') and the Protected Disclosure Act 2012. Since the last exchange of written submissions, those three Acts, among others, have been amended by the Integrity and Accountability Legislation Amendment (A Stronger System) Act 2016 ('the 2016 Act'). The 2016 Act, having received Royal Assent on 31 May 2016, came into operation, for the most part, on 1 July 2016. Some of the amendments made by the 2016 Act relate, directly or indirectly, to the jurisdiction, powers and obligations of the Ombudsman. Indeed, some of the very provisions referred to in the parties' submissions in this case have now been amended by the 2016 Act, including the particular section under which the referral was made, namely s 16 of the Ombudsman Act 1973. The amendment to s 16 is merely to introduce gender neutral language, but more substantive changes have been made to certain of the other provisions to which the parties have referred. On the other hand, neither in their written submissions nor in their oral submissions to this Court did any party make any reference to the Bill for the 2016 Act or to the Act itself. This was despite the fact that the Bill for the 2016 Act had been read a second time in the Legislative Assembly on 10 December 2015 and in the Legislative Council on 24 March 2016. The Bill was passed (with amendments) by the Legislative Council on 5 May 2016. As mentioned above, it received the Royal Assent on 31 May 2016. Given their identities, the parties must have been aware of these developments as they were occurring. I can only assume that all of the parties considered, and still consider, that the 2016 Act does not need to be taken into account by the Court in the present case. Such a view might be based on the proposition that, under the Interpretation of Legislation Act 1984 and/or at common law, the amendments should be regarded as prospective only and as being inapplicable to any investigation to be carried out pursuant to a referral made before the commencement of the 2016 Act (such as the referral in this case); or that the particular amendments would not, in any event, touch or affect the constructional exercise involved in the present case; or both.

8 In accordance with what appears to be the common view of the parties, I will proceed, so far as the legislation is concerned, generally by reference to the form which the legislation took as at the date of the referral, namely 25 November 2015 ('the relevant time'), and by reference to its prior history. Nevertheless, out of caution, I have also considered the effects of the 2016 Act and from time to time in the course of this judgment I will refer to the particular amendments made by that Act. As it happens, even if the amendments made by the 2016 Act were to be regarded as applicable to this case, the outcome, in my view, would be the same.

9 The question of the Ombudsman's jurisdiction in relation to the referral turns on the proper construction of the relevant legislative provisions. However, the parties differ from each other a little in the framing of the constructional issue.

10 The Ombudsman submits that the question is whether, on the true construction of s 16 of the Ombudsman Act 1973 (read in its own statutory context and in the context of those provisions of the IBAC Act and of the Protected Disclosure Act 2012 which intersect with provisions of the Ombudsman Act 1973), the Ombudsman's power to investigate and report on a matter pursuant to s 16 is or is not limited by reference to the functions of the Ombudsman set out in ss 13-13AA (inclusive) of Part III of the Ombudsman Act 1973.[6] She submits that, if the power is not so limited, s 16 would allow her to investigate a matter (being a matter referred under that section) relating directly to Ministers, Members of Parliament, Ministerial officers, Parliamentary advisers or electorate officers, notwithstanding that she would not have jurisdiction to investigate such persons on the basis of a complaint under s 14 of the Act nor of her own motion pursuant to s 16A of the Act. Hence, apart from the suggested limitation, the present investigation would, in the Ombudsman's submission, be within jurisdiction under s 16. The competing view, she submits, is that s 16 is limited by reference to the functions set out in ss 13-13AA (inclusive) of the Act and that s 16 is merely a machinery provision which empowers the Legislative Council, among others, to refer a matter (being a matter otherwise within the jurisdiction of the Ombudsman under ss 13-13AA of the Act) to the Ombudsman, rather than a provision that confers an additional function on the Ombudsman. On that view, if the content of a Parliamentary referral under s 16 went beyond the matters covered in ss 13-13AA (inclusive), the Ombudsman would have no jurisdiction to investigate. The Ombudsman proceeds on the basis that the presently relevant referral does go beyond the matters covered in s 13-13AA (inclusive). According to the Ombudsman, the 'key concept' in ascertaining the jurisdiction granted by these statutory provisions is the meaning of the phrase 'any matter' in s 16.

11 By contrast, the Attorney-General submits that the 'precise question' that arises for resolution in this proceeding is not whether the Ombudsman has jurisdiction to investigate the referral, but whether the Legislative Council had power to make the relevant referral under s 16.[7] He places particular emphasis on the terms of the Ombudsman Act 1973 as a whole and on its interaction with the IBAC Act and the Protected Disclosure Act 2012. He submits that the scope of the referral power is to be determined by reference to the Ombudsman's general jurisdiction and powers. He submits that, when s 16 of the Act is construed in that way, the Legislative Council had no power to make the relevant referral to the Ombudsman and the Ombudsman has no jurisdiction to investigate and report on the matter referred to her by the Legislative Council. According to the Attorney-General, to frame the analysis through the lens of the phrase 'any matter' contained in s 16(1), as the Ombudsman does, is inappropriate.[8] The Attorney-General contends that, in the light of the various contextual considerations to which he refers, s 16 of the Act cannot be construed as conferring a power to refer any matter to the Ombudsman divorced from the Ombudsman's functions in Part III of the Act (which includes ss 13-13AA).[9] Rather, the Attorney-General contends, the power to refer matters under s 16 and the scope of the duty to investigate must be subject to the limits of the Ombudsman's functions and jurisdiction in Part III. On that basis, he submits that the Ombudsman has no jurisdiction to investigate and report on the relevant referral and that the Court should make orders accordingly.

12 The general position of the President of the Legislative Council is as follows. He notes the Attorney-General's submissions to the effect that the focus should not be on the phrase 'any matter' and that, instead, the scope of the referral power in s 16 should be considered in the broader context of the Act and related Acts.[10] However, the President submits, on its proper construction s 16 is nevertheless an additional and independent source of investigative power, being an additional power that is expressly contemplated by Part III of the Act and an independent power that is not constrained and limited by the provisions of Part III. He submits that s 16(1) authorised the referral; and that s 16(2) obliges the Ombudsman to investigate and report on the matter that is the subject of the referral.[11]

13 In my opinion, s 16 is not just a machinery provision. It does more than merely supply a trigger for the exercise by the Ombudsman of functions identified elsewhere. Subject to certain provisions of the Ombudsman Act 1973 to which I will come, s 16(2) - when activated by a Parliamentary referral under s 16(1) - does confer on the Ombudsman a function additional to the functions of the Ombudsman identified in Part III of the Act. In the present case, the Legislative Council had power under s 16(1) of the Ombudsman Act 1973 to refer to the Ombudsman the matter the subject of its resolution of 25 November 2015; and the Ombudsman has jurisdiction under s 16(2) of the Act to investigate that matter. I will make a determination under s 27 of the Act accordingly.

14 Having regard to the submissions of the parties and to the questions arising in this case as I see them, it is necessary to refer to the text of several pieces of legislation in considerable detail.

The Ombudsman Act 1973

15 The long title of the Ombudsman Act 1973 is:

An Act to provide for the Appointment in Victoria of an Ombudsman with Power to investigate Administrative Actions taken by or on behalf of Government Departments and other Authorities, and for other purposes.

16 The Act is composed of 10 Parts, of which Parts I, III, IV and V are the most relevant in this proceeding.

17 Part I is entitled 'Interpretation'. It contains the definitions section, s 2. Some relevant terms are defined by reference to other Acts, including the IBAC Act and the Protected Disclosure Act 2012. I will later set out or refer to the relevant provisions of those Acts.

18 So far as presently noteworthy, s 2 of the Ombudsman Act 1973 provided at the relevant time, and still provides, as follows:

2 Definitions

(1) In this Act unless inconsistent with the context or subject-matter -

...

administrative action means any action relating to a matter of administration, and includes -

(a) a decision and an act;

(b) the refusal or failure to take a decision or to perform an act;

(c) the formulation of a proposal or intention; and

(d) the making of a recommendation (including a recommendation made to a Minister);

...

assessable disclosure has the meaning given in section 3 of the Protected Disclosure Act 2012;

authority means -

(a) a Department;

(b) an Administrative Office;

(ba) Court Services Victoria

(c) a specified entity -

but does not include an exempt person or body or a Councillor of a Council;

...

complainant means a person who makes a complaint;

complaint means a complaint under section 14;

...

corrupt conduct has the meaning given in section 4 of the Independent Broad-based Anti-corruption Commission Act 2011;

...

Department has the meaning given by section 4(1) of the Public Administration Act 2004;

...

exempt person or body means a person or body specified in Schedule 2;

...

IBAC means the Independent Broad-based Anti-corruption Commission established under section 12 of the Independent Broad-based Anti-corruption Commission Act 2011;

...

own motion investigation means an investigation by the Ombudsman under section 16A;

...

protected disclosure complaint means a disclosure determined to be a protected disclosure complaint under section 26 of the Protected Disclosure Act 2012 that has been referred to the Ombudsman under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011;

protected disclosure entity means -

(a) a member of Parliament;

(b) a Councillor;

(c) a member of the teaching service within the meaning of the Education and Training Reform Act 2006;

(d) a State funded residential care service within the meaning of the Health Services Act 1988;

(e) a person or body prescribed by Rules of Parliament made under this Act;

...

referred complaint has the meaning given in section 16B(1);

referred matter has the meaning given in section 16B(2);

relevant protected disclosure complaint means a protected disclosure complaint that the Ombudsman is required to investigate under section 15C;

...

specified entity means a person or body specified in column 1 of Schedule 1;

...

(3) In this Act, a reference to a person who made a protected disclosure complaint or to a person who made a relevant protected disclosure complaint is a reference to a person who made a disclosure that was determined to be a protected disclosure complaint under section 26 of the Protected Disclosure Act 2012.

19 Part II of the Act is entitled 'The Ombudsman'. Section 3 deals with the appointment and term of office of the Ombudsman. Subsections 3(1) to (4) provide:

(1) There shall be appointed a Commissioner for Administrative Investigations, to be called the Ombudsman.

(2) The Ombudsman shall be appointed by the Governor in Council and shall hold office in accordance with this Act.

(3) The Ombudsman shall not be a Member of Parliament of Victoria or of the Commonwealth or any other State.

(4) Subject to this Act, the Ombudsman holds office for a term of 10 years, and is not eligible to be re-appointed.

Section 6 provides for the appointment of an Acting Ombudsman. Section 7 provides:

Any employees that are necessary to enable the functions of the Ombudsman to be properly carried out may be employed under the Public Administration Act 2004.

20 Within Part II, s 10(3) provides that the oath or affirmation which the Ombudsman is required to take is to be administered by the Speaker of the Legislative Assembly. Under s 11, the Ombudsman may delegate 'all or any of the powers or functions of the Ombudsman (except this power of delegation) under this or any other Act to any person...'.

21 Part III of the Ombudsman Act 1973 is entitled 'Functions and Jurisdiction of the Ombudsman'. Part III was not amended by the 2016 Act, except to introduce gender neutral language in some provisions. At the relevant time, it read:

PART III** - FUNCTIONS AND JURISDICTION OF THE OMBUDSMAN**

13 Principal function of Ombudsman

(1) The principal function of the Ombudsman is to enquire into or investigate any administrative action taken by or in an authority, other than administrative action -

(a) that appears to involve corrupt conduct; or

(b) that is taken under the Freedom of Information Act 1982.

Note

See section 13AA(1)(a) for the Ombudsman's function in relation to corrupt conduct.

(2) The function of the Ombudsman under subsection (1) includes the power to enquire into or investigate whether any administrative action that he or she may enquire into or investigate under subsection (1) is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act 2006.

(3) The powers of the Ombudsman in relation to any administrative action taken by or in an authority may be exercised even if the action was taken on behalf of, or in the performance of any function conferred on, a person who or body which is not an authority, but nothing in this Act authorises the Ombudsman to question the merits of any decision made by that person or body.

(4) If any administrative action is taken by a person who or by or in a body which is not an authority (other than an exempt person or body) under any powers or functions conferred on or instructions given by an authority, the administrative action is, for the purposes of this Act, taken to be the administrative action of the authority, and the powers of the Ombudsman in respect of that action may be exercised accordingly.

13AAA Function of Ombudsman to investigate protected disclosure complaints

The Ombudsman has the function to investigate protected disclosure complaints about conduct by or in an authority or a protected disclosure entity.

(1) In addition to the principal function in section 13 and the function in section 13AAA, the Ombudsman has the following functions -

(a) to enquire into or investigate any administrative action taken by or in an authority that appears to involve corrupt conduct on a referral from the IBAC under Division 5 of Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011;

(b) to monitor compliance with Part 2A of the Prevention of Cruelty to Animals Act 1986 by officers of the Royal Society for the Prevention of Cruelty to Animals who are approved as general inspectors under section 18(1)(b)(ii) of that Act;

(c) to monitor compliance with the Domestic Animals Act 1994 by persons appointed as authorised officers under section 71A(1) or 72A(1) of that Act;

(d) any other functions conferred by or under this or any other Act.

(2) The function of the Ombudsman under subsection (1)(a) includes the power to enquire into or investigate whether any administrative action referred to in that subsection is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act 2006.

(3) For the avoidance of doubt, nothing in this Act authorises or requires the Ombudsman to enquire into or investigate anything done or omitted to be done by or in an exempt person or body.

13AB Ombudsman not to prejudice legal proceedings or investigations

(1) The Ombudsman must not perform his or her functions or duties or exercise his or her powers in a manner that would prejudice any -

(a) criminal proceedings or criminal investigations; or

(b) investigations by the IBAC or the Victorian Inspectorate.

(2) For the purposes of ensuring compliance with subsection (1), the Ombudsman may consult any of the following -

(a) the Director of Public Prosecutions;

(b) the Chief Commissioner of Police;

(c) the IBAC;

(d) the Victorian Inspectorate.

(1) Despite anything to the contrary in Schedule 2, Court Services Victoria is not an exempt body.

(2) In exercising his or her functions or duties or exercising his or her powers in relation to Court Services Victoria, the Ombudsman must not -

(a) interfere with the exercise of the jurisdiction of a court or VCAT; or

(b) direct a court or VCAT as to the manner or outcome of the exercise of its judicial function in any particular case or any other judicial or quasi-judicial function.

(3) The Ombudsman or a member of Ombudsman staff must not, pursuant to section 21, enter a court or tribunal hearing room in the course of the hearing of a matter, except with the agreement of the presiding judicial officer.

(4) The Ombudsman or a member of Ombudsman staff must not require a judicial member of the Courts Council or a member of the staff of Court Services Victoria -

(a) to provide any information (including answering any question); or

(b) to produce any document -

to the extent that the information or document concerns the exercise of a judicial or quasi-judicial function by a court, VCAT or a person specified in clause 7 of Schedule 2 or by any person exercising the function on behalf of a court or VCAT.

(5) Despite subsection (4), the Ombudsman or a member of Ombudsman staff may require a member of the staff of Court Services Victoria to provide information or documents in a matter that relates to the exercise of a judicial or quasi-judicial function if the relevant head of the jurisdiction has approved the provision of such information or documents, subject to any conditions agreed between the relevant head of the jurisdiction and the Ombudsman.

(6) In this section -

Courts Council means the Courts Council established under section 10 of the Court Services Victoria Act 2014;

member of the staff, of Court Services Victoria has the same meaning as it has in section 3 of the Court Services Victoria Act 2014.

22 I turn to Part IIIA of the Act, entitled 'Enquiries'. At the relevant time,[12] Part IIIA was in the following form:

PART IIIA - ENQUIRIES

13A Conducting of enquiries

(1) The Ombudsman may conduct an enquiry for the purpose of determining whether -

(a) an investigation under this Act (other than an investigation on a protected disclosure complaint) should be conducted; or

(b) the matter may be resolved informally.

(2) The Ombudsman may conduct an enquiry either on his or her own motion or as a consequence of a complaint under section 14, a referred complaint or a referred matter.

(3) The principal officer of any authority (if any) must assist the Ombudsman in the conduct of an enquiry.

13B Communication of information to complainant

Section 24 applies to -

(a) information obtained or received in the course or as a result of an enquiry under this Act; and

(b) the result of an enquiry under this Act and any recommendations made -

as if the enquiry were an investigation under this Act.

23 Part IV of the Ombudsman Act 1973 is headed 'Investigations'. It consists of 10 Divisions, numbered 1, 1A, 2, 2A, 2B, 2C, 2D, 2E, 3 and 4. Division 2 is wholly comprised of s 16, being the section under which the Legislative Council made the referral to the Ombudsman which is presently in question. It is desirable to set out the whole of Divisions 1, 1A, 2,[13] 2A and 2B. At the relevant time,[14] those Divisions were in the following form:

PART IV - INVESTIGATIONS

Division 1 - Complaints generally

14 Making a complaint

(1) The following persons may make a complaint to the Ombudsman about an administrative action taken by or in an authority -

(a) a person or body of persons affected by the administrative action (an aggrieved person); or

(b) a member of Parliament acting on behalf of an aggrieved person; or

(c) if an aggrieved person has died, a person who the Ombudsman considers is suitable to represent the deceased person; or

(d) if the Ombudsman considers that an aggrieved person is unable to act for themselves, a person who the Ombudsman considers is suitable to represent the aggrieved person; or

(e) any other person if, having regard to all the circumstances, the Ombudsman considers it is appropriate to deal with the complaint.

(2) A complaint must be made in writing except where the Ombudsman considers that the complainant -

(a) is under 18 years of age; or

(b) does not have sufficient knowledge of the English language to make a complaint in writing; or

(c) has a mental or physical impairment that prevents the complainant from making a complaint in writing.

(3) The Ombudsman may deal with a complaint even if, on the face of it, the complaint does not refer to an administrative action taken by or in an authority if the Ombudsman considers there is a likelihood that the cause for complaint arose from such an action.

1. Ombudsman must refuse to deal with certain complaints

(1) The Ombudsman must refuse to deal with a complaint that appears to involve corrupt conduct or police personnel conduct other than to notify the IBAC or the Victorian Inspectorate under Division 2C.

(2) The Ombudsman must refuse to deal with a complaint about administrative action that is taken under the Freedom of Information Act 1982 other than, if it could be made the subject of a complaint under Part VIA of that Act, to notify the Freedom of Information Commissioner under Division 2C.

(3) The Ombudsman must refuse to deal with a complaint if dealing with it would be contrary to section 13AB.

(4) The Ombudsman must refuse to deal with a complaint relating to terms and conditions of employment of persons who are or were employed by or in an authority unless the Ombudsman considers that the matter merits investigation in order to avoid injustice.

(5) If the Ombudsman considers that a complainant has or had a right of appeal or referral to, or review by, a tribunal, the Ombudsman must refuse to deal with the complaint unless the Ombudsman considers that in the particular circumstances -

(a) it would not be reasonable to expect or have expected the complainant to exercise that right; or

(b) the matter merits investigation to avoid injustice.

(6) If the Ombudsman considers that a complainant has or had a remedy by taking proceedings in a court, the Ombudsman must refuse to deal with the complaint unless the Ombudsman considers that in the particular circumstances -

(a) it would not be reasonable to expect or have expected the complainant to take those proceedings; or

(b) the matter merits investigation to avoid injustice.

15A Ombudsman may refuse to deal with certain complaints

(1) The Ombudsman may refuse to deal with a complaint if the Ombudsman considers -

(a) the subject-matter of the complaint is trivial; or

(b) the complaint is frivolous or vexatious or is not made in good faith; or

(c) the complaint lacks substance or credibility; or

(d) the subject-matter of the complaint has already been investigated or otherwise dealt with by -

(i) an integrity body within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011; or

(ii) any other person or body (whether or not still in existence) with the power to require the production of documents or the answering of questions.

(2) The Ombudsman may refuse to deal with a complaint if the complainant -

(a) made the complaint more than 12 months after becoming aware of the administrative action; and

(b) fails to give a satisfactory explanation for the delay in making the complaint.

Subject to sections 15 and 15A, the Ombudsman may conduct an investigation under this Act on a complaint.

Division 1A - Protected disclosure complaints

15C Ombudsman must investigate protected disclosure complaints

Subject to sections 15D and 15E, the Ombudsman must conduct an investigation under this Act on a protected disclosure complaint about conduct by or in an authority or a protected disclosure entity.

15D Ombudsman must refuse to investigate certain protected disclosure complaints

(1) The Ombudsman must refuse to conduct an investigation on a protected disclosure complaint if conducting the investigation would be contrary to section 13AB.

(2) The Ombudsman must refuse to conduct an investigation on a protected disclosure complaint about conduct by or in an authority or a protected disclosure entity unless the Ombudsman is reasonably satisfied that the protected disclosure complaint shows or tends to show that -

(a) the authority or protected disclosure entity or a member, officer or employee of the authority or protected disclosure entity has engaged, is engaging or proposes to engage in improper conduct; or

(b) the authority or protected disclosure entity or a member, officer or employee of the authority or protected disclosure entity has taken, is taking or proposes to take detrimental action against a person in contravention of section 45 of the Protected Disclosure Act 2012.

(3) In this section, improper conduct has the meaning given in section 4 of the Protected Disclosure Act 2012.

15E Ombudsman may refuse to investigate certain protected disclosure complaints

(1) The Ombudsman may refuse to conduct an investigation on a protected disclosure complaint if the Ombudsman considers -

(a) the subject-matter of the protected disclosure complaint is trivial; or

(b) the protected disclosure complaint is frivolous or vexatious; or

(c) the protected disclosure complaint lacks substance or credibility; or

(d) the subject-matter of the protected disclosure complaint has already been investigated or otherwise dealt with by -

(i) an integrity body within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011; or

(ii) any other person or body (whether or not still in existence) with the power to require the production of documents or the answering of questions.

(2) The Ombudsman may refuse to conduct an investigation on a protected disclosure complaint if the person who made the protected disclosure complaint -

(a) made the disclosure that was determined to be a protected disclosure complaint more than 12 months after becoming aware of the disclosed matter; and

(b) fails to give a satisfactory explanation for the delay in making the disclosure.

15F Person who made protected disclosure complaint to be informed of refusal to investigate

If the Ombudsman refuses to conduct an investigation on a protected disclosure complaint, the Ombudsman, within a reasonable time after receiving the protected disclosure complaint from the IBAC, must inform the person who made the protected disclosure complaint of -

(a) the refusal to conduct the investigation; and

(b) the reason for that refusal.

(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 him.

(2) Where a matter is referred to him pursuant to subsection (1), the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon.

Note

Section 25AB provides for the manner of reporting.

Division 2A - Own motion investigations

16A Ombudsman may conduct own motion investigation

(1) Subject to section 13AB and this section, the Ombudsman may conduct an investigation on his or her own motion into any administrative action taken by or in an authority.

(2) The Ombudsman must not conduct an own motion investigation into any administrative action that appears to involve corrupt conduct.

(3) The Ombudsman must not conduct an own motion investigation into any administrative action that is taken under the Freedom of Information Act 1982.

(4) The Ombudsman must not conduct an own motion investigation into a matter relating to terms and conditions of employment of persons who are or were employed by or in an authority unless the Ombudsman considers that the matter merits investigation in order to avoid injustice.

(5) If the Ombudsman considers that a person aggrieved by any administrative action taken by or in an authority has or had a right of appeal or referral to, or review by, a tribunal, the Ombudsman must not conduct an own motion investigation into the matter unless the Ombudsman considers that in the particular circumstances -

(a) it would not be reasonable to expect or have expected the person to exercise that right; or

(b) the matter merits investigation to avoid injustice.

(6) If the Ombudsman considers that a person aggrieved by any administrative action taken by or in an authority has or had a remedy by taking proceedings in a court, the Ombudsman must not conduct an own motion investigation into the matter unless the Ombudsman considers that in the particular circumstances -

(a) it would not be reasonable to expect or have expected the person to take those proceedings; or

(b) the matter merits investigation to avoid injustice.

Division 2B - Referred complaints and matters

16B What are referred complaints and referred matters?

(1) For the purposes of this Act, a referred complaint is -

(a) a complaint within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 (other than a protected disclosure complaint) referred to the Ombudsman by the IBAC under section 73 of that Act; or

(b) a complaint about any administrative action taken by or in an authority referred to the Ombudsman by another person or body (whether under an Act or otherwise); or

(c) a protected disclosure complaint that the Ombudsman has refused to investigate under section 15D(2).

(2) For the purposes of this Act, a referred matter is -

(a) a notification within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 referred to the Ombudsman by the IBAC under section 73 of that Act; or

(b) a matter referred, or information provided, to the Ombudsman (whether under an Act or otherwise) about any administrative action taken by or in an authority, but not including a matter referred to the Ombudsman under section 16.

(1) The Ombudsman may deal with a referred complaint if it could be made the subject of a complaint under section 14.

(2) The referred complaint is to be dealt with as if it were a complaint under section 14.

(3) Section 15(1) does not apply to a referred complaint that is a complaint within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 referred to the Ombudsman by the IBAC under section 73 of that Act.

(1) The Ombudsman may deal with a referred matter if the matter could be made the subject of an own motion investigation.

Note

Section 16A sets out the Ombudsman's power to conduct an own motion investigation.

(2) The referred matter is to be dealt with as if it were an own motion investigation.

(3) Section 16A(2) does not apply to a referred matter that is a notification within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 referred to the Ombudsman by the IBAC under section 73 of that Act.

24 Division 2C of Part IV Ombudsman Act 1973 is entitled 'Mandatory notifications by the Ombudsman'. At the relevant time, s 16E required the Ombudsman to notify the Independent Broad-based Anti-corruption Commission ('IBAC') of certain things that appeared to involve corrupt conduct (as defined) or police personnel conduct (as defined). Currently, s 16E is expressed somewhat differently, but the basic subject matter is similar.[15] It is desirable to set out subsection (1) of s 16E (as in force at the relevant time) in full:

(1) The Ombudsman must notify the IBAC of the following -

(a) a complaint or referred matter that appears to involve corrupt conduct or police personnel conduct; or

(b) a matter that appears to involve corrupt conduct or police personnel conduct of which the Ombudsman becomes aware in the course of dealing with a complaint, conducting an own motion investigation or performing any other functions under this Act.

Section 16F required the Ombudsman to notify the Victorian Inspectorate of certain matters relating to IBAC personnel or to an Ombudsman officer, an officer of the Victorian Auditor-General's Office, the Chief Examiner or an Examiner. For present purposes, the current version is not significantly different.[16] Section 16G required, and still requires, the Ombudsman to notify the Freedom of Information Commissioner of a complaint if the complaint could be made the subject of a complaint under Part VIA of the Freedom of Information Act 1982.

25 Division 2D of Part IV of the Ombudsman Act 1973, comprising ss 16H to 16K (inclusive), provides, in effect, that the Ombudsman has power to refer a complaint, other than a complaint of certain specified kinds (such as a complaint of corrupt conduct (as defined)), to another person or body specified in Schedule 3 if the Ombudsman considers that the complaint would be more appropriately dealt with by that other person or body. Division 2D was not amended by the 2016 Act.

26 Division 2E is entitled 'Information sharing'. At the relevant time, it contained only one section, namely s 16L. At that time,[17] s 16L authorised the Ombudsman to provide or disclose information received or obtained in the course of the Ombudsman's work to certain persons or bodies if the Ombudsman considered that the information was relevant to their duties or functions. Division 2E now includes, also, s 16M, which gives the Ombudsman additional, albeit qualified, powers to provide or disclose information to the public or to other specified kinds of recipients.

27 Division 3 of Part IV is entitled 'Conduct of investigations'. At the relevant time it consisted of ss 17 to 22 inclusive. The Attorney-General placed a degree of reliance on s 17 in his submissions. It is desirable to set out s 17, as in force at the relevant time,[18] in full:

(1) Before conducting an investigation under this Act, the Ombudsman must inform the following in writing of the Ombudsman's intention to conduct the investigation -

(a) the complainant or the person who made the relevant protected disclosure complaint; and

(b) the principal officer (if any) of the authority or protected disclosure entity to which the investigation relates; and

(c) the responsible Minister (if any) for the authority or protected disclosure entity to which the investigation relates; and

(d) if the investigation relates to a member of staff of a Council or a Councillor, the Mayor of the Council.

(1A) Information given under subsection (1)(a) to a person who made a relevant protected disclosure complaint must include a written statement advising the recipient that it is an offence under section 26FA to disclose the Ombudsman's intention to conduct an investigation.

(1B) The Ombudsman must not inform a person under subsection (1) if doing so would result in information being disclosed that -

(a) is likely to lead to the identification of a person who has made an assessable disclosure; and

(b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

(2) Every investigation under this Act shall be conducted in private.

(3) Subject to any Rules of Parliament under this Act the Ombudsman is not required to hold any hearing for the purposes of an investigation, and he may obtain information from such persons and in such manner as he thinks fit.

(4) If at any time during an investigation it appears to the Ombudsman that there may be grounds for making a report adverse to an authority or a protected disclosure entity, the Ombudsman must, before making the report, give the principal officer (if any) of the authority or protected disclosure entity the opportunity to comment on the subject-matter of the investigation.

(4A) If at any time during the course of an investigation on a relevant protected disclosure complaint about a Councillor it appears to the Ombudsman that there may be grounds for making a report adverse to the Councillor, the Ombudsman must, before making the report, give the responsible Minister or the Mayor of the relevant Council the opportunity to comment on the subject-matter of the investigation.

(5) The Ombudsman may at any time during or after an investigation (other than an investigation on a relevant protected disclosure complaint about a member of Parliament) consult a Minister who is concerned in the subject-matter of an investigation, and if a Minister so requests or the investigation relates to a recommendation made to a Minister, shall consult the Minister before forming an adverse opinion in relation to the administrative action concerned or, in case of an investigation of a relevant protected disclosure complaint, an adverse opinion in relation to the conduct.

(5A) If an investigation relates to an administrative action taken by a member of staff of a Council or relates to a relevant protected disclosure complaint about conduct of a Councillor or a member of staff of a Council, the Ombudsman -

(a) may, at any time during or after the investigation, consult the Mayor of the Council; and

(b) must, if the Mayor so requests or the investigation relates to a recommendation made to the Council, consult the Mayor before forming an adverse opinion in relation to the administrative action or conduct.

(6) If, during or after an investigation, the Ombudsman considers that there is evidence of a breach of duty or misconduct on the part of an authority or a protected disclosure entity, or a member, officer or employee of an authority or a protected disclosure entity, the Ombudsman must -

(a) report the matter to the principal officer (if any) of the authority or protected disclosure entity; and

(b) send a copy of the report to the responsible Minister and, if the authority or protected disclosure entity is a member of staff of a Council or a Councillor, to the Mayor of the Council.

(6A) The Ombudsman must not disclose any information under subsection (4), (4A), (5), (5A) or (6) that -

(a) is likely to lead to the identification of a person who has made an assessable disclosure; and

(b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

(7) Subject to this Act and any Rules of Parliament made under this Act the Ombudsman may regulate his procedures on an investigation in such manner as he thinks fit.

28 Sections 18 to 18G (inclusive) should be noted, although none of the parties referred to any of them. They were not amended by the 2016 Act, except to introduce gender neutral language. By cross-reference to certain (now repealed) provisions of the Evidence (Miscellaneous Provisions) Act 1958, s 18 of the Ombudsman Act 1973 gives to the Ombudsman powers relating to the obtaining of evidence.[19] Persons giving evidence before the Ombudsman retain almost all of the privileges applicable to a witness appearing in a trial in the Supreme Court.[20] Further, s 18 requires the Ombudsman to give advance notice, to a person summoned, of the matters of which the person is to give evidence. Section 18A requires the Ombudsman to report promptly to the Victorian Inspectorate as to the issue of any witness summons, giving reasons for the issue of the summons. Section 18B provides that witness summonses may not be issued to persons under 16 years of age. Section 18C provides that persons summoned or otherwise involved in an enquiry or investigation before the Ombudsman may seek legal advice or representation, subject to certain limited restrictions as to the persons from whom legal advice or representation may be sought. Section 18D requires that, except when prejudice to an investigation may occur, the Ombudsman must give, to a person who is to appear voluntarily, advance notice of the matters in respect of which the person is to be asked questions. Section 18E requires that certain specified information and assistance relating to procedure and confidentiality be given to witnesses in advance of their appearance. Section 18F provides for the audio or video recording of compulsory appearances. Section 18G gives to legal practitioners representing a person at a compulsory appearance the same protection and immunity as in the Supreme Court.

29 Of the other provisions contained in Division 3 of Part IV, only ss 19, 19A, 19B, 19C and 21 were mentioned in the course of the parties' submissions and only they are worth setting out here. None of them was amended by the 2016 Act. They read:

1. Deliberations of Ministers and Parliamentary committees not to be disclosed

(1) A person shall not be required or authorized by virtue of this Act -

(a) to furnish any information or answer any question; or

(b) to produce or inspect so much of any document -

which relates to the deliberations of Ministers or any committee consisting of Members of Parliament where the committee is formed for the purpose of advising the Ministers in respect of their deliberations.

(2) This section does not apply in relation to an investigation on a relevant protected disclosure complaint.

19A Cabinet information not to be disclosed - relevant protected disclosure complaints

In relation to an investigation on a relevant protected disclosure complaint, a person is not required or authorised to -

(a) furnish any information that is Cabinet information; or

(b) answer any question that relates to Cabinet information; or

(c) produce or inspect any document that is Cabinet information.

19B Deliberations of Parliamentary Committees not to be disclosed - relevant protected disclosure complaints

In relation to an investigation on a relevant protected disclosure complaint, a person is not required or authorised to furnish any information or produce or inspect any document or answer any question that relates to any deliberation in private of the following -

(a) a Joint Investigatory Committee or the House Committee, within the meaning of the Parliamentary Committees Act 2003;

(b) a committee of the Legislative Council or Legislative Assembly on a private Bill;

(c) a committee consisting of members of Parliament established by resolution of either the Legislative Council or the Legislative Assembly, or the resolution of both the Legislative Council and the Legislative Assembly.

(1) The Secretary to the Department of Premier and Cabinet may issue a certificate certifying that -

(a) any information or question or document or part of a document relates to deliberations of Ministers or of a committee referred to in section 19; or

(b) any information or document or part of a document -

(i) is Cabinet information; or

(ii) would, if it existed, be Cabinet information; or

(c) any question relates to Cabinet information; or

(d) any information or question or document or part of a document relates to deliberations in private of a committee referred to in section 19B.

(2) A certificate issued under this section is conclusive of the facts certified.

(1) For the purposes of conducting an investigation under this Act (other than an investigation on a relevant protected disclosure complaint) the Ombudsman or a member of Ombudsman staff authorised to do so by the Ombudsman may at any reasonable time enter any premises occupied or used by an authority to which this Act applies, and inspect those premises or anything for the time being therein or thereon.

(2) For the purpose of conducting an investigation on a relevant protected disclosure complaint, the Ombudsman or a member of Ombudsman staff authorised to do so by the Ombudsman may at any reasonable time enter any premises occupied or used by an authority or a protected disclosure entity in its capacity as such and inspect those premises or anything for the time being in them or on them.

30 Division 4 of Part IV is entitled 'Action on completion of investigations'. It consists of three sections, namely ss 23, 23A and 24. None of those sections was amended by the 2016 Act, except to introduce gender neutral language. It is desirable to set out ss 23 and 23A in full. At the relevant time they provided:

23 Procedure on completion of investigation

(1) Where as a result of an investigation conducted under this Act (other than an investigation conducted under Division 1A or 2) the Ombudsman is of the opinion that the administrative action to which the investigation relates -

(a) appears to have been taken contrary to law;

(b) was unreasonable unjust oppressive or improperly discriminatory;

(c) was in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable unjust oppressive or improperly discriminatory;

(d) was taken in the exercise of a power or discretion, and was so taken for an improper purpose or on irrelevant grounds, or on the taking into account of irrelevant considerations;

(e) was a decision that was made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given;

(f) was based wholly or partly on a mistake of law or fact; or

(g) was wrong -

he shall take action as set out in subsection (2).

(2) Where in a case referred to in subsection (1) the Ombudsman is of the opinion -

(a) that the subject-matter of the investigation should be referred to the appropriate authority for further consideration;

(b) that action could be, and should be, taken to rectify or mitigate or alter the effects of the action to which the investigation relates;

(c) that any practice in accordance with which the action was taken should be varied;

(d) that any law in accordance with which or on the basis of which the action was taken should be reconsidered;

(e) that reasons should be given for the action; or

(f) that any other steps should be taken -

the Ombudsman must report his or her opinion and the reasons for it to the principal officer of the authority or, if there is no principal officer, to the responsible Minister for the authority, and may make any recommendations the Ombudsman thinks fit.

(2A) On completion of an investigation on a relevant protected disclosure complaint (other than a relevant protected disclosure complaint about a member of Parliament) the Ombudsman -

(a) must report the findings of the investigation -

(i) to the principal officer (if any) of the appropriate authority or protected disclosure entity; or

(ii) if there is no principal officer, to the responsible Minister for the authority or protected disclosure entity; or

(iii) if the protected disclosure complaint is about a Councillor, to the Mayor of the appropriate Council; and

(b) may make recommendations as to the action to be taken as a result of the investigation.

(3) If the Ombudsman makes a report or recommendations under subsection (2) or (2A), the Ombudsman -

(a) must send a copy -

(i) to the responsible Minister for the authority or protected disclosure entity (unless the Ombudsman has made the report or recommendations to the responsible Minister under subsection (2)); and

(ii) if the authority is a member of staff of a Council, to the Mayor of the Council; and

(b) may send a copy to the Premier.

(4) Where, under subsection (2) or (2A), the Ombudsman makes recommendations to the principal officer of, or responsible Minister for, an authority or a protected disclosure entity, or the Mayor of the appropriate Council, the Ombudsman may request the principal officer or responsible Minister or Mayor to notify the Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendations or, if no such steps have been or are proposed to be taken, the reasons therefor.

(5) Where it appears to the Ombudsman that no steps that seem to him to be appropriate have been taken within a reasonable time of his making any report or recommendations under subsection (2) or (2A) he may, after considering the comments (if any) made by or on behalf of the principal officer or responsible Minister or Mayor to whom the report or recommendations were made, send -

(a) to the Governor in Council; and

(b) where the report relates to a complaint concerning an administrative action by a member of staff of a Council, to the Mayor of the Council; and

(c) where the report relates to a relevant protected disclosure complaint about a Councillor or a member of staff of a Council, to the Mayor of the Council -

a copy of the report and the recommendations together with a copy of any such comments.

(6) If a copy of any report and recommendations together with a copy of any comments has been sent to the Governor in Council under subsection (5), the Ombudsman may make a report to the Parliament on any of the matters to which the report and recommendations relate that the Ombudsman thinks fit.

(6A) The Ombudsman must not include in a recommendation under subsection (2) or (2A) any information that -

(a) is likely to lead to the identification of a person who has made an assessable disclosure; and

(b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

23A Report on investigation - relevant protected disclosure complaints about members of Parliament

On completion of an investigation on a relevant protected disclosure complaint about a member of Parliament, the Ombudsman must report the findings of the investigation -

(a) to the President of the Legislative Council, if the complaint is about a member of the Legislative Council; or

(b) to the Speaker of the Legislative Assembly, if the complaint is about a member of the Legislative Assembly.

31 Section 24 applies where the Ombudsman has dealt with a 'complaint' or a 'relevant protected disclosure complaint'. It requires the Ombudsman to inform the complainant or the person who made the relevant protected disclosure complaint of the outcome, subject to certain qualifications.

32 Part V of the Ombudsman Act 1973 is entitled 'Annual and other reports'. Except in one immaterial respect,[21] and except to introduce gender neutral language,[22] Part V has not been amended by the 2016 Act. For present purposes, s 25AB is the most important of the provisions contained in Part V. Section 25A is also significant. Those sections should be set out in full. They read:

The Ombudsman must send a report under section 16 to -

(a) the President of the Legislative Council, if the matter was referred by the Legislative Council or a committee of the Legislative Council; or

(b) the Speaker of the Legislative Assembly, if the matter was referred by the Legislative Assembly or a committee of the Legislative Assembly; or

(c) the President of the Legislative Council and the Speaker of the Legislative Assembly, if the matter was referred by a joint committee of both Houses of Parliament.

(1) The Ombudsman must not include in a report under this Act -

(a) any information that the Ombudsman considers would prejudice any criminal proceedings or criminal investigations, or investigations by the Ombudsman, the IBAC or the Victorian Inspectorate; or

(b) any information, or information in any document, referred to in section 19, 19A or 19B; or

(c) a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit an offence; or

(d) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence.

(1A) The Ombudsman must not include in a report under this Act any information that -

(a) is likely to lead to the identification of a person who has made an assessable disclosure; and

(b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

(2) If the Ombudsman intends to include in a report under this Act a comment or opinion that is adverse to any person, the Ombudsman must first give the person a reasonable opportunity to respond to the adverse material and fairly set out the response in the report.

(3) The Ombudsman must not include in a report under this Act any information that would identify any person who is not the subject of any adverse comment or opinion unless the Ombudsman -

(a) is satisfied that it is necessary or desirable to do so in the public interest; and

(b) is satisfied that it will not cause unreasonable damage to the person's reputation, safety or wellbeing; and

(c) states in the report that the person is not the subject of any adverse comment or opinion.

33 Section 26 provides that 'Rules of Parliament' made under the Act may authorise the Ombudsman to publish 'in the public interest or in the interests of any person authority or other organization' reports relating generally to the exercise of functions by the Ombudsman or to any case investigated by the Ombudsman.

34 Part VA is headed 'Confidentiality'. Division 1 imposes certain confidentiality requirements on the Ombudsman, the Acting Ombudsman and the members of the Ombudsman's staff. Division 2 empowers the Ombudsman to issue confidentiality notices to third parties requiring them to keep specified matters confidential during the progress of investigations. Division 3 makes it an offence for persons who receive certain kinds of information relating to 'relevant protected disclosure complaints'[23] to disclose such information except in specified circumstances. The provisions of Part VA were amended in one minor respect by the 2016 Act.[24] Part VA contains various cross-references to the Protected Disclosure Act 2012, the IBAC Act and the Victorian Inspectorate Act 2011. However, no party has submitted before me that those particular cross-references are of any significance for present purposes; and I myself see no present significance in them.

35 Part VB of the Ombudsman Act 1973 is entitled 'Oversight of the Ombudsman'. This Part was not amended by the 2016 Act. The Part contains a cross-reference (in s 26G) to the functions of the Victorian Inspectorate in relation to the Ombudsman as set out in the Victorian Inspectorate Act 2011. Part VB also provides (by ss 26H and 26I) for oversight of the Ombudsman by a Parliamentary committee called the Accountability and Oversight Committee.

36 Part VI of the Ombudsman Act 1973 is headed 'Miscellaneous'. Apart from the introduction of gender neutral language,[25] Part VI has not been amended by the 2016 Act. The Attorney-General placed some reliance on the terms of s 27, being the very provision under which this proceeding has been brought. Section 27 reads:

(1) Where in the course of an investigation under this Act the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or the party subject to the investigation, may make an application to the Supreme Court for a determination of that question, and on the application the Court may make such order as it considers proper.

(3) For the purposes of this section the principal officer of the authority or protected disclosure entity affected by the investigation shall be deemed to be a party subject to the investigation.

37 Section 28 provides that letters passing between the Ombudsman and persons in custody are not to be opened by third parties. The Attorney-General referred to this section as being an example of an 'other' function conferred on the Ombudsman 'by or under the Ombudsman Act 1973 or any other Act', as envisaged in s 13AA(1)(d) of the Act.[26]

38 Section 31 deals with the making of 'Rules of Parliament' relating to the Ombudsman. At the relevant time, s 31 provided:

(1) Rules of Parliament may be made for the guidance of the Ombudsman in the exercise of his functions and for any other purpose for which Rules of Parliament may be made under this Act.

(2) Subject to this Act the functions of the Ombudsman shall be exercised in accordance with the Rules of Parliament made under this Act.

(3) The Rules of Parliament referred to in this section are Rules that have been agreed upon by both Houses of Parliament in accordance with the Rules and Orders thereof.

(4) Rules of Parliament made under this Act shall be published in the Government Gazette.

39 Part VII of the Ombudsman Act 1973 contains saving and transitional provisions. It need not be further mentioned.

40 Schedule 1 of the Act is entitled 'Specified entities'.[27] It contains in column 1 a list of 38 persons or bodies, they being listed for the purposes of the definition of 'specified entity' in s 2(1) of the Act.[28] It will be recalled that the expression 'specified entity' is, in turn, used in the definition of 'authority' in s 2(1). Each of the persons or bodies listed as a specified entity would appear to be a person or body involved in public administration or law enforcement.

41 Schedule 2 of the Act contains a list of 'exempt persons and bodies'.[29] It will be recalled that the expression 'exempt person or body' is defined in s 2(1) to mean a person or body specified in Schedule 2. In turn, the expression 'exempt person or body' is used in the definition of 'authority', so as to exclude the listed persons and bodies from the coverage of that term. Further, the expression 'exempt person or body' is used in s 13AA(3), which, as indicated above, provides:

(3) For the avoidance of doubt, nothing in this Act authorises or requires the Ombudsman to enquire into or investigate anything done or omitted to be done by or in an exempt person or body.

Schedule 2 contains 19 items.[30] Item 7 includes a Victorian court, VCAT and a lengthy list of judicial and quasi-judicial officers. Various other bodies of a legal or quasi-legal kind are also included in Schedule 2, together with police personnel, the Governor, IBAC, the Victorian Inspectorate, a Public Interest Monitor, the Chief Examiner, the Victorian Electoral Commission, the Auditor-General, the Electoral Boundaries Commission and various others associated with these persons or bodies. In addition, as the Attorney-General points out, the list includes (as item 18) 'A Department of the Parliament'. On the other hand, as the President of the Legislative Council points out, the list does not include a Minister of the Crown or a member of Parliament. I will return to those matters.

42 Finally, Schedule 3 of the Ombudsman Act 1973 contains a list of persons and bodies to whom or to which the Ombudsman may refer complaints as provided for in s 16I of the Act.

The Constitution Act 1975

43 Since 2003, the position of the Ombudsman has been recognised in,[31] and entrenched by,[32] the Victorian Constitution. In that year, Part VA (entitled 'Special provisions') was inserted into the Constitution Act 1975. Part VA contains provisions relating severally to the Ombudsman, the Electoral Commissioner, Victorian electoral boundaries and freedom of information. The position of the Ombudsman is covered by s 94E. It provides:

(1) The Ombudsman appointed in accordance with the Ombudsman Act 1973 is an independent officer of the Parliament.

(2) The functions, powers, rights, immunities and obligations of the Ombudsman are as specified in this section, the Ombudsman Act 1973 and other laws of the State.

(3) There are no implied functions, powers, rights, immunities or obligations arising from the Ombudsman being an independent officer of the Parliament.

(4) The powers of the Parliament to act in relation to the Ombudsman are as specified in the Ombudsman Act 1973.

(5) There are no implied powers of the Parliament arising from the Ombudsman being an independent officer of the Parliament.

(6) Subject to this section, the Ombudsman Act 1973 and other laws of the State, the Ombudsman has complete discretion in the performance or exercise of his or her functions or powers.

(7) The Ombudsman is not to be removed or suspended from office except in accordance with the provisions of sections 3 and 4 of the Ombudsman Act 1973 as in force immediately before the commencement of section 19 of the Constitution (Parliamentary Reform) Act 2003 or provisions substituted for those sections which have the same effect.

The IBAC Act and the Protected Disclosure Act 2012

44 It will be recalled that the expression 'corrupt conduct' is used in ss 13(1)(a), 13AA(1)(a), 16A(2) and 16E (among others) of the Ombudsman Act 1973 and that the expression is defined in s 2 of that Act to have the meaning given in s 4 of the IBAC Act. At the relevant time, s 4 of the IBAC Act provided:[33]

(1) For the purposes of this Act, corrupt conduct means conduct -

(a) of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or

(b) of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or

(c) of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or

(d) of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person; or

(e) that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c) or (d) -

being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.

(2) Conduct may be corrupt conduct for the purposes of this Act if -

(a) all or any part of the conduct occurs outside Victoria, including outside Australia; and

(b) the conduct would be corrupt conduct if it occurred in Victoria.

(3) This Act does not apply to any conduct of any person that can be considered by the Court of Disputed Returns in proceedings in relation to a petition under Part 8 of the Electoral Act 2002.

45 It will also be recalled that the expression 'protected disclosure complaint' is defined in s 2 of the Ombudsman Act 1973; and that it is used in several other sections of the Act. They include, most relevantly, ss 13AAA, 15C, 15D, 15E, 15F, 16B(1), 17, 23 and 23A. In effect, the expression is defined to mean a disclosure determined by IBAC to be a protected disclosure complaint under s 26 of the Protected Disclosure Act 2012 that has been referred by IBAC to the Ombudsman under s 73 of the IBAC Act. The essential idea of the statutory scheme referred to in the definition of 'protected disclosure complaint' is for the IBAC to operate as a clearing house for all 'assessable disclosures'. In both the Ombudsman Act 1973 and the IBAC Act, 'assessable disclosure' is defined to have the same meaning as it has in the Protected Disclosure Act 2012. In s 3 of that Act, 'assessable disclosure' is defined to mean, essentially, a disclosure that a relevant entity considers may be a 'protected disclosure'. The expression 'protected disclosure', in turn, is defined in s 3 of the Protected Disclosure Act 2012 as follows:

(a) a disclosure made in accordance with Part 2; or

(b) a complaint made in accordance with section 167(3) of the Victoria Police Act 2013.

As to paragraph (a) of the definition of 'protected disclosure', for a disclosure to be made 'in accordance with Part 2', it must meet several requirements. First, by virtue of s 9 of the Protected Disclosure Act 2012, it must be made by a natural person and it must be a disclosure of information showing or tending to show 'improper conduct' as defined in s 4 of the Protected Disclosure Act 2012 or be a disclosure of information believed on reasonable grounds by the discloser to show or tend to show 'improper conduct' as so defined. At the relevant time,[34] 'improper conduct' was defined to mean 'corrupt conduct' (as defined) or certain other specified kinds of (discreditable) conduct by or relating to a public officer (as defined) or a public body (as defined), being conduct that, if proved, would constitute a criminal offence or reasonable grounds for dismissing or dispensing with, or otherwise terminating, the service of the officer who was, or is, engaged in the conduct. In addition, for a disclosure to be made in accordance with Part 2 of the Protected Disclosure Act 2012 and thus to qualify as a 'protected disclosure' within paragraph (a) of the definition in s 3 of that Act, the disclosure has to be made in accordance with the procedure prescribed under the Act.[35] Further, the disclosure is required to be made to one or other of the entities referred to in ss 13 to 19 (inclusive) of the Protected Disclosure Act 2012, as appropriate. As to paragraph (b) of the definition of protected disclosure, s 167(3) of the Victoria Police Act 2013 provides:

(3) A police officer or protective services officer must make a complaint to a police officer or protective services officer of a more senior rank to that officer, or to the IBAC, about the conduct of another police officer or protective services officer if he or she has reason to believe that the other officer is guilty of misconduct.

In s 166 of the Victoria Police Act 2013, 'misconduct', in relation to a police officer or protective services officer, is defined to mean -

(a) conduct which constitutes an offence punishable by imprisonment; or

(b) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or

(c) disgraceful or improper conduct (whether in the officer's official capacity or otherwise).

46 Pursuant to s 26 of the Protected Disclosure Act 2012, IBAC is to assess whether a disclosure made or referred to it is a protected disclosure (as defined). If IBAC is of that view then, under s 26(3), IBAC must determine that the disclosure is a protected disclosure complaint, or, in any other case, determine that the disclosure is not a protected disclosure complaint. As stated in a note to s 26(3), the protections under Part 6 of the Protected Disclosure Act 2012 (which relate to such things such as immunity from liability, protection from defamation action and protection from reprisal) apply to a protected disclosure whether or not IBAC has determined that the disclosure is a protected disclosure complaint. Further, s 53 of the Protected Disclosure Act 2012 provides that, except in the circumstances stated in ss 53(2)(a)-(d),[36] information likely to lead to the identification of a person who has made an 'assessable disclosure' must not be disclosed.

47 IBAC must deal with a protected disclosure complaint in accordance with the IBAC Act.[37] Under s 73 of the IBAC Act, IBAC determines whether the protected disclosure complaint should be investigated by IBAC itself or whether it should be referred out. Putting aside protected disclosure complaints relating to police personnel, IBAC may only refer a protected disclosure complaint to the Ombudsman or to the Victorian Inspectorate.[38]

48 As mentioned above, the written submissions of the Ombudsman dated 9 February 2016 contain a set of arguments against jurisdiction and a set of arguments for jurisdiction. I will pass by the Ombudsman's arguments against jurisdiction because all of them are taken up and included in the Attorney-General's subsequent submissions to which, in turn, the President of the Legislative Council fully responded subsequently. However, it is desirable to recount the Ombudsman's submissions in favour of jurisdiction in order to appreciate better the Attorney-General's submissions in response, and because not all of the Ombudsman's pro-jurisdiction submissions are picked up or included in the subsequent submissions of the President of the Legislative Council.

49 The analysis supporting jurisdiction contained in the Ombudsman's submissions is as follows.[39]

50 It can be contended, the Ombudsman says, that she has clear jurisdiction under s 16, based on the plain words of s 16 itself. The Act contains no express limitation on the phrase 'any matter' in s 16 except for the reference (in s 16 itself) to a matter relating to a judicial proceeding; and it can be contended that the Act does not imply any other restriction on the scope of a referral under s 16. This construction requires the phrase 'any matter' to be read literally, with no qualification based on other provisions of the Act, especially since those provisions which might otherwise appear to be in conflict with this approach are in an entirely separate Part. This view is supported, so the argument goes, by the plain intention of the Parliament in enacting s 16 to provide a separate source of jurisdiction for the Ombudsman.

51 Further, according to the Ombudsman's pro-jurisdiction analysis, the fact that s 16 is to be found in a Part headed 'Investigations' is not sufficient to require that an artificial restriction be applied to the plain words of s 16. It may be unusual to find a conferral of jurisdiction under a heading such as 'Investigations', but this can hardly be definitive in the task of construction. In any event, so the analysis goes, the circumstance that the identity of the referring party is a branch of Parliament is a clear indication that the jurisdiction of the Ombudsman in the case of a s 16 referral is distinct from that created by other provisions of the Act. According to this view, the Legislative Council has clearly been entrusted by Parliament itself to determine the content of any relevant referral.

52 The Ombudsman proceeds to refer to the second reading speech of the responsible Minister, Sir George Reid, for the 1973 Bill for the Ombudsman Act. In that speech, Sir George Reid referred to Division 2, comprising s 16, as setting out 'what is virtually a separate function of the Ombudsman'.[40] While the corresponding New Zealand legislation was 'broadly speaking, the prototype' of the Ombudsman Act 1973,[41] Victoria did not include the New Zealand words 'so far as they are within his jurisdiction'. Section 11(3) of the Parliamentary Commissioner (Ombudsman) Act 1962 (NZ) relevantly provided:

any Committee of the House of Representatives may at any time refer to the Commissioner, for investigation and report by him, any petition that is before that Committee for consideration, or any matter to which that petition relates. In any such case, the Commissioner shall ... investigate the matters so referred to him, so far as they are within his jurisdiction ... .

It may be assumed, the Ombudsman suggests, that the Victorian Parliament considered and rejected the possibility of including this phrase, such a jurisdictional limitation not having been enacted.

53 The Ombudsman's pro-jurisdiction analysis then turns to the corresponding legislation of Western Australia, the Parliamentary Commissioner Act 1971 (WA). Originally, that Act contained no express words of jurisdictional limitation in the corresponding place. Section 15(1) of that Act, enacted before s 16 of the Victorian legislation, provided:

Either House of Parliament, or any committee of either of those Houses, or a joint committee of both Houses of Parliament, may refer to the Commissioner, for investigation and report, any matter which that House or committee considers should be investigated.

In 1976 the Western Australian Parliament amended s 15(1) by introducing the phrase 'which is within his jurisdiction' after 'any matter'. Sir Charles Court, the then WA Premier, moved the amending Bill in the Assembly and stated that s 15:

In its present form ... is very wide indeed and [it] is considered desirable to restrict it so Parliament cannot require the commissioner to investigate a matter beyond his jurisdiction. The amendment envisaged would remove any possibility of the power given by this section being used to involve the commissioner in matters which might be far removed from the type of problem for which the office was designed to deal.[42]

54 The Ombudsman then points out that the limiting words 'any matter which is within his jurisdiction' were employed in the corresponding provision in the Tasmanian Ombudsman Act 1978,[43] and also by South Australia in 1996 when it introduced Parliamentary references into its 1972 Ombudsman legislation.[44] Despite these measures in equivalent legislation in other Australian jurisdictions, Victoria has chosen not to amend the unconfined language that has been contained in s 16 of the Ombudsman Act 1973 from the beginning up until the present day.

55 The Ombudsman then returns to New Zealand's Ombudsman statute, observing that the re-enactment of that statute in 1975 may be instructive. In 1975 the New Zealand legislature introduced a new section providing for Prime Ministerial referrals, namely s 13(5), which contained no limiting words referring to jurisdiction, although it did contain a limitation in the form of a requirement for the consent of the Chief Ombudsman to a referral. At the same time, however, it retained the more limited wording of s 11(3) in a new section 13(4). Thus in New Zealand it appears to be accepted that there is a distinction between provisions limited by clauses referring to jurisdiction, and provisions that are not. In the Second Reading Speech for the 1975 Bill, the NZ Minister for Justice, Dr Finlay, referred to the new provision (which, in the debate, was referred to as clause 12(4A)) in the following way:

The new subclause provides an easy way of invoking the office for special ad hoc projects ... To ensure that the proposed referral is appropriate to, and within the capacity of the office, the consent of the Chief Ombudsman is required ... So, with the consent of the Chief Ombudsman, but with his consent only, the Prime Minister may refer to an ombudsman a matter ... which the Prime Minister considers should be investigated by the ombudsman and, as I say the Chief Ombudsman having consented to receive the request, an ombudsman is then able to act on it and report.[45]

56 Next, the Ombudsman's pro-jurisdiction analysis asserts that the exception for judicial proceedings expressly provided for by s 16 of the Victorian Act shows that Parliament did consider what limitations ought to be imposed upon the jurisdiction created by s 16. In those circumstances, so it is said, there is no reason to constrain the plain grant of power beyond the literal meaning of the phrase. If Parliament had wanted the phrase 'any matter' to be limited, it would have clearly stated so in the legislation.

57 Further, the analysis continues, it is not correct to assert that a broad construction would empower the Ombudsman to investigate anything at all, which might appear at first glance to be a possibility on this construction. This is because, according to the argument, it is clear from the functions set out in s 13 itself, and from the interaction of the Act with the suite of integrity legislation that includes the Protected Disclosure Act 2012 and the IBAC Act, that the Ombudsman's functions concern the investigation of matters of administrative probity, and not, for example, matters such as the operations of a religious institution or the commercial activities of a private company. In the present case, the referral concerns a matter of administrative probity. The Ombudsman's role is established by statute for a public purpose, and that purpose is still fulfilled by a broader construction of s 16. On this approach, the Ombudsman has jurisdiction to investigate pursuant to the referral.

The Attorney-General's arguments: principal written submissions

58 I turn now to the detail of the arguments set out in the Attorney-General's principal written submissions.[46]

59 As mentioned above, the Attorney-General submits that to frame the analysis through the lens of the phrase 'any matter' is inappropriate. He submits that this has three flaws, as follows:

(1) First, there is an anterior question, namely: what is the scope of the referral power? The power of investigation can only respond to, and must stay within the scope of, a lawful referral.[47] The Ombudsman has the power to investigate a matter lawfully referred to her under s 16(1). This is because the conferral of a power on the Parliament to impose a duty on the Ombudsman will carry with it the power of performance on the part of the Ombudsman.[48]

(2) Second, the relevant constructional issue is the meaning of the phrase '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 him'. The task is to construe the language of the statute, not individual words;[49]

(3) Third, to start with an assumption that the words are of broad compass and look for words that cut down their width is to invert the process of statutory construction.

The Attorney-General submits that '[t]his last error' was recently discussed by a majority of the High Court in Independent Commission Against Corruption v Cunneen[50] in response to a submission that the words 'adversely affect' and 'corrupt conduct', as used in the Independent Commissioner Against Corruption Act 1988 (NSW) ('the ICAC Act'), should be given a broad initial construction that should not be limited unless an intention to that effect can be located in the Act. Against that background, French CJ and Hayne, Kiefel and Nettle JJ had stated that:[51]

[s]o to reason ... is to invert proper processes of construction. It amounts to assuming that the words of s 8(2) are used in their broadest possible sense and then excluding all the contextual indications which imply that they have a more narrow and focused meaning. Expressions of indefinite connotation are especially susceptible to context. They may and frequently do mean one thing in one legislative context and something quite different in another. To ignore context in those circumstances is calculated to lead to error. For the reasons that have been given, the provisions of the ICAC Act as a whole (including s 2A) operate more harmoniously on the footing that the Act is directed towards promoting the integrity and accountability of public administration in the sense of maintaining probity in the exercise of official functions. That is the context from which the relevant concept of 'corruption' emerges.

In Cunneen, their Honours had ultimately held that the words 'adversely affect' and 'corrupt conduct', which, on their ordinary meaning, were words of broad import, were required to be construed by reference to the broader statutory context of the ICAC Act. This had resulted in those words being given a more confined meaning.[52]

60 Accordingly, in the Attorney-General's submission, to determine the scope of the referral power in s 16 of the Ombudsman Act 1973 it is necessary to consider the broader statutory context of the Act and how s 16 is intended to operate within that context.

61 The Attorney-General's fundamental submission is that '[t]he subject matter of a valid referral must be limited by the functions and jurisdiction of the Ombudsman found in Part III of the Act'.[53] He contends that there are nine matters in the broader statutory context of the Act that show why this is so.

62 First, the Attorney-General says, the structure of the Act suggests this construction. Part III of the Act, he says, defines the functions and jurisdiction of the Ombudsman. Part IV, he says, provides for when and how those functions and that jurisdiction will be exercised. The location of s 16 within Division 2 of Part IV indicates that s 16 is merely a trigger for the exercise of the Ombudsman's jurisdiction, rather than a provision that confers an additional function on the Ombudsman.

63 Second, according to the submission, an unbounded referral power in s 16 would be inconsistent with the statutory exemption of numerous persons and bodies from investigation by the Ombudsman. The definition of 'authority' in s 2 excludes exempt persons or bodies, which are those persons or bodies that are listed in Schedule 2 of the Act (including 'a Department of the Parliament'). A broad construction of the referral power in s 16 would, the Attorney-General says, allow the Parliament to refer otherwise exempt bodies and persons for investigation and report by the Ombudsman. A construction that has such an internally inconsistent result should be avoided.[54] Further, the Attorney-General submits, oversight of a number of persons and bodies was expressly removed from the Ombudsman in 2012 (by the insertion of their names in Schedule 2) and was conferred on other entities, including the IBAC and the Victorian Inspectorate.[55] A broad construction of the referral power would therefore distort the intended distribution of supervisory roles given to the various integrity bodies in 2012, he says.

64 Relatedly, the Attorney-General submits, a broad reading of s 16 would permit a referral for investigation of the conduct of private bodies that would be irrelevant to the functions adumbrated in Part III. It would be incongruous, he says, for the parameters of the investigating function to be entirely determined by the body referring the matter for investigation rather than by the boundaries of the matters that naturally fit within the scope and jurisdiction of the investigating agency. Given the careful delineation of the Ombudsman's functions and jurisdiction in Part III, it would be incongruous, he says, to 'imply' an ad hoc referral power of such potential breadth 'into' s 16.

65 The Attorney-General observes that the Ombudsman's own pro-jurisdiction analysis recognises that there must be some limit on the concept of 'any matter', and that even a broad construction of s 16 would not 'empower the Ombudsman to investigate anything at all'. The Attorney-General notes the Ombudsman's suggestion that a particular limit on the jurisdiction to investigate referrals may be implied from the Ombudsman's functions, namely that the Ombudsman is limited to investigating matters of administrative probity. However, the Attorney-General contends, the Ombudsman's suggestion does not explain why this particular limit should be implied in circumstances where other statutory features (as identified by the Attorney-General in his submissions) indicate a greater limit. The Attorney-General submits that the Ombudsman's suggestion fails to have regard to the whole scheme of the Act.

66 Third, the Attorney-General submits, a referral power of the breadth suggested would travel well beyond the scope and subject matter of the Ombudsman Act 1973, which is, as described in the long title, an Act 'to provide for the Appointment of an Ombudsman with Power to investigate Administrative Actions taken by or on behalf of Government Departments and other Authorities, and for other purposes'.[56] According to the Attorney-General, the words 'for other purposes' cannot be relied upon to support the 'implication' of a power far greater than that expressly contemplated by the Act. He says that this remains a powerful point notwithstanding the specific extension respecting protected disclosure complaints.

67 Fourth, the Attorney-General submits that it is notable that s 16 provides that the branch of the Parliament making the referral must consider that the matter should be investigated by the Ombudsman. It is not enough, he submits, that the relevant Parliamentary body consider that the matter should be investigated by someone. According to the Attorney-General, there is a logic that the referred matter must fall within the functions of the Ombudsman in Part III. If the matter were not relevant to the functions of the Ombudsman then, according to the Attorney-General, it is not easy to discern why it would be considered to be suitable for investigation by her. The more so when, as indicated in the Attorney-General's fifth and sixth points,[57] the Ombudsman's procedures for, and powers in, investigations are (as the Attorney-General would have it) tailored to the exercise of the functions and jurisdiction conferred under Part III.

68 Fifth, the Attorney-General relies on s 17, which appears in Division 3 of Part IV of the Ombudsman Act 1973. He notes that s 17 variously permits and requires the Ombudsman to inform or consult with certain persons and bodies before commencing, and in the course of conducting, his or her investigations. He submits that s 17 only contemplates investigations into:

(i) authorities and protected disclosure entities;[58]

(ii) Members of Parliament (but only in relation to relevant protected disclosure complaints);[59]

(iv) council staff members;[61] and

(v) members, officers or employees of authorities or protected disclosure entities.[62]

69 The Attorney-General submits that these persons and entities correspond precisely with the persons and entities that may be investigated pursuant to the Ombudsman's functions in Part III. It would be odd, he says, if the Act prescribed the manner in which the Ombudsman may or must consult with such persons and entities, but did not provide any equivalent prescription in respect of investigations undertaken pursuant to a broader investigative function in s 16. Subsections 17(4)-(6) therefore impliedly confirm, he says, that the full scope of the Ombudsman's functions and jurisdictions are provided for in Part III.

70 Sixth, according to the submission of the Attorney-General, a number of the Ombudsman's powers of investigation, and limits on those powers, reflect the limits on the functions conferred on the Ombudsman under Part III. For example, he says, there are limitations on access to Ministerial documents in ss 19-19C which reflect, he says, the absence of a function to investigate an administrative action - or indeed any action - taken by Ministers and their staff, other than in protected disclosure complaints. According to the Attorney-General, it would be unusual if, nevertheless, the Ombudsman could be given the function of investigating Ministers by means of a referral under s 16. Likewise, he says, s 21 of the Act, which confers a power on the Ombudsman or her staff to enter, inspect and search premises for the purposes of an investigation under the Act, only extends to the premises of an authority or a protected disclosure entity. If s 16 were construed as 'implying' an additional function to investigate that went beyond the investigation of authorities and protected disclosure entities, then, according to the Attorney-General, it would create two standards of investigation under the Act - those in which the Ombudsman could exercise powers of entry and inspection under s 21, and those in which he or she could not. This, the Attorney-General says, would be an odd result.

71 Seventh, the Attorney-General turns to the language of s 16(2), which requires the Ombudsman to 'forthwith investigate [a matter referred under s 16(1)] and report thereon'. The Attorney-General acknowledges that s 16(2) might be considered to confer both a duty and a power and in that sense to identify a different or additional function. However, he submits, s 16(2) must be construed in the surrounding context. He submits that the language of s 16(2), by contrast to that of certain other provisions in the Act relating to investigations, makes an investigation pursuant to a referral under s 16(1) mandatory, rather than discretionary. Construing s 16 by reference to this mandatory/discretionary distinction gives force to the words of s 16, while respecting the boundaries of the Ombudsman's functions and jurisdiction set out in Part III, the Attorney-General says. Further, the Attorney-General submits, in imposing the duty 'notwithstanding anything to the contrary in this Act', s 16(2) precludes the Ombudsman from declining to investigate under s 15A.

72 Eighth, the Attorney-General submits that s 16 can be given a sensible construction without implying a broad ad hoc power of the kind suggested by the Ombudsman. Section 16 may be construed as providing the mechanism by which a House or committee may require the Ombudsman to exercise his or her functions and jurisdiction under Part III. In that way, the Attorney-General submits, s 16 fits sensibly within the structure of Part IV as one of four means - complaint, Parliamentary referral, own motion and executive/administrative referral - by which the functions in Part III are triggered.

73 Ninth (and finally), the Attorney-General submits that s 27 of the Act anticipates that the Ombudsman's investigations will be limited by the Ombudsman's functions and jurisdiction in Part III. Section 27(1) provides that where a question arises as to whether the Ombudsman has jurisdiction to conduct an investigation, the Ombudsman or the party subject to the investigation may apply to the Supreme Court for resolution of that question. Section 27(3) then provides that 'the principal officer of the authority or protected disclosure entity affected by the investigation shall be deemed to be a party subject to the investigation'. The Attorney-General submits that the bodies that may be deemed parties subject to an investigation under s 27(3) correspond precisely with the bodies that may be investigated by the Ombudsman under Part III of the Act. Section 27 makes no provision, he says, for any other bodies to apply to the Supreme Court for the resolution of a jurisdictional dispute. According to the Attorney-General, this suggests that the referral power in s 16 is limited by the Ombudsman's powers and jurisdiction under Part III of the Act.

74 In summing up his principal written submissions, the Attorney-General contends, as indicated above, that s 16 of the Act, considered in its proper context, cannot be construed as conferring a power to refer any matter to the Ombudsman divorced from the Ombudsman's functions in Part III. As a result, he submits, the power to refer matters under s 16(1) and the scope of the duty to investigate under s 16(2) must be subject to the limits of the Ombudsman's functions and jurisdiction in Part III. He further submits that that conclusion, arrived at by an analysis of the text of the statute, cannot be displaced by an 'isolated phrase' in the second reading speech (he refers here to the statement by Sir George Reid that s 16 sets out 'what is virtually a separate function of the Ombudsman') or by reference to 'different' Ombudsman legislation in New Zealand, Western Australia and Tasmania.

75 Accordingly, the Attorney-General contends, the Court should determine that the Ombudsman has no jurisdiction to investigate and report on the referral made by the Legislative Council on 25 November 2015.

The arguments of the President of the Legislative Council: principal written submissions

76 I turn now to an account of the arguments of the President of the Legislative Council as set out in his principal written submissions dated 18 April 2016.

77 After dealing with preliminary matters, the President's submissions proceed to summarise the Ombudsman Act 1973, with specific reference to the long title of the Act and to ss 2 (definitions), 13, 13AAA, 13AA, 14, 16, 16A, 16B, 16C, 16D, 17, 25AB and 27.[63] In the course of that summary of the Act, the President emphasises the expression 'and for other purposes' in the long title to the Act; and he emphasises the word 'principal' in the expression 'the principal function of the Ombudsman' in s 13(1). The President also draws particular attention to s 13AA(1)(d) which provides for 'any other functions conferred by or under this or any other Act' (emphasis added by the President). In addition, he mentions the cross references to s 16 in s 16B(2) and in s 25AB.[64]

78 As indicated above, the fundamental submission of the President is that, properly construed, s 16 is an additional and independent source of investigative power, being an additional power that is expressly contemplated by Part III of the Act and an independent power that is not constrained or limited by the provisions of Part III; that s 16(1) authorised the referral; and that s 16(2) obliges the Ombudsman to investigate and report on the matter that is the subject of the referral.[65]

79 The President commences to develop his argument by referring to certain principles of statutory construction, being principles that were stated by the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd[66] in the following terms:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text".[67] So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

80 With that background, the President says that s 16(1) of the Ombudsman Act 1973 gives a power to 'refer to the Ombudsman for investigation and report any matter', with only one exception - 'a matter concerning a judicial proceeding'. He notes that s 16(2) then provides that, where a matter is referred to the Ombudsman pursuant to s 16(1), 'the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon'.

81 The President submits that the language of s 16(1) is clear and broad. It provides for a referral in relation to 'any matter', subject to one stated exception ('a matter concerning a judicial proceeding'). The President submits that that wide language can be contrasted with certain other language found in other provisions of the Act relating to the Ombudsman's powers of investigation, namely the following language contained in the following provisions:

• s 13(1): 'to inquire into or investigate any administrative action taken by or in an authority';
• s 13AAA: 'to investigate protected disclosure complaints about conduct by or in an authority or a protected disclosure entity';
• s 13AA(1)(a): 'to inquire into or investigate any administrative action taken by or in an authority that appears to involve corrupt conduct on a referral from the IBAC ...';
• s 14(1): 'a complaint to the Ombudsman about an administrative action taken by or in an authority';
• s 16A(1): 'an investigation on his or her own motion into any administrative action taken by or in an authority';
• s 16B(1)(b): 'a complaint about any administrative action taken by or in an authority referred to the Ombudsman by another person or body';
• s 16C(1): 'a referred complaint if it could be made the subject of a complaint under section 14' - as to which, see the fourth dot point above; and
• s 16D(1): 'a referred matter if the matter could be made the subject of an own motion investigation' - as to which, see the fifth dot point above.

82 Returning to the language of s 16 itself, the President observes again that, following the referral of 'any matter, other than a matter concerning a judicial proceeding', the Ombudsman is obliged to investigate and report on the matter, 'notwithstanding anything to the contrary in this Act'.

83 The President submits that, on its face, s 16 confers on the Houses of Parliament and their committees a free-standing and broad power to refer a matter to the Ombudsman, and imposes on the Ombudsman a free-standing and broad obligation to investigate and report, subject only to the one specific stated exception. The President submits that the question is whether the broad power and obligation should be read down and, if so, how.

84 In this (early) part of his principal written submissions, the President says that it 'might be' that one additional exception to the s 16(2) obligation, apart from the exception in s 16(1) concerning a judicial proceeding, can be found in s 13AA(3). He goes on to discuss that possible limitation later in the submissions. However, at this point, the President asserts that there is no need in the current proceeding for the Court to resolve the relationship between s 13AA(3) and s 16, and he further asserts that there is no other basis for reading down s 16(1) or (2).

85 The balance of the President's written submissions are divided into three parts: an analysis of the Ombudsman Act 1973 in its current form, a discussion of the legislative history of the Act and a response to the Attorney-General's written submissions.

86 In analysing the Ombudsman Act 1973 in its current form, the President focuses initially on the language of s 16. He submits that that language should be contrasted with the language used in the abovementioned provisions that define the Ombudsman's powers of investigation. He submits that this contrast points to an independent power to make a referral and an independent obligation to investigate and report.

87 The President points out that the power of referral under s 16(1), and the consequent obligation pursuant to s 16(2) to investigate and report, are not expressed by reference to 'administrative action taken by or in an authority', whereas ss 13(1), 13AA(1)(a), 14(1), 16A(1), 16B(1)(b), 16C(1) and 16D(1) are so expressed.[68] He further points out that, in contrast to s 13AAA, the power of referral and the obligation to investigate and report under s 16 are not expressed by reference to 'conduct by or in an authority or a protected disclosure entity'. In each of those contrasted provisions, the subject of the complaint, protected disclosure complaint, own motion investigation, referred complaint or referred matter (as the case may be) is identified differently from the way in which s 16 identifies the subject of a referral under that section. According to the President, the contrast between the terms used in s 16(1) and those used in the other provisions mentioned (which he describes as 'other provisions identifying the Ombudsman's functions and powers') suggests that s 16(1) confers an independent referral power and that s 16(2) defines an independent investigative function and power, separate from the investigative powers identified elsewhere in the Act.

88 The President submits that the exception for a 'matter concerning a judicial proceeding' would have no substantial work to do if the s 16(1) power were only available in relation to a matter defined by the Ombudsman's functions under Part III - because, by virtue of express provisions in the Act,[69] it is already the case that the Ombudsman's functions under Part III do not extend to Victorian courts or to the Victorian Civil and Administrative Tribunal ('VCAT'). Again, in this context as well, the President claims support from the fact that the obligation imposed on the Ombudsman by s 16(2) to investigate and report on a referred matter is one that operates 'notwithstanding anything to the contrary in this Act'.

89 According to the President, these features of the language of s 16 reinforce the free-standing nature of that section, unconstrained by any implications that might otherwise be drawn from Part III of the Act. (At this point, the President foreshadows a later submission to the effect that the absence of any such constraint is made plain by s 13AA(1)(d).)

90 The President submits that a further indication of the free-standing nature of s 16 can be seen when that provision is compared with s 14(1)(b). Section 14(1) identifies the persons who may make a complaint to the Ombudsman about administrative action taken by or in an authority - that is, a complaint relevant to the Ombudsman's principal function, as defined in s 13(1).[70] Amongst those persons is a member of Parliament acting on behalf of an aggrieved person: s 14(1)(b). The section 16(1) referral power is vested in a parliamentary committee or one of the Houses of Parliament - in each case, in an institution consisting of several members of Parliament. The President submits that if, as the Attorney-General contends, a valid referral can only be made where the matter referred would fall within one of the functions identified in Part III of the Act, it would follow that the House or the parliamentary committee referring the matter could do no more than take, in substance, the same step as an individual member of Parliament could take in relation to the Ombudsman's principal function.[71] The President submits that this would produce a very strange result: one of the Houses of Parliament, for example, could do no more under s 16(1) than a single member of the Parliament could do under s 14(1).

91 Turning to another previously foreshadowed point, the President submits that there is only one possible additional constraint on the s 16(2) obligation to investigate and report, namely a constraint that could be derived from s 13AA(3). For convenience I will set out s 13AA(3) again:

(3) For the avoidance of doubt, nothing in this Act authorises or requires the Ombudsman to enquire into or investigate anything done or omitted to be done by or in an exempt person or body.

The President submits that s 13AA(3) does not appear to affect s 16(1), which itself does not purport to authorise or require the Ombudsman to investigate anything. However, the President acknowledges, it might be argued that s 13AA(3) could affect s 16(2), which requires the Ombudsman to investigate a matter referred to the Ombudsman pursuant to s 16(1).

92 The President observes that each of s 13AA(3) and s 16(2) is expressed in apparently uncompromising terms; and that, in those terms, the two provisions appear to be in conflict. On its face, s 16(2) requires investigation of a referred matter 'notwithstanding anything to the contrary in this Act'. But s 13AA(3) appears to protect an exempt person or body from the operation of any provision in the Act that would require the Ombudsman to investigate the actions or omissions of an exempt person or body (being a person or body listed in Schedule 2).

93 In this situation, the President submits, it may be necessary to identify which of the two provisions is the leading provision and which must give way to the other, so as to give effect to their purpose and language while maintaining the unity of the statutory scheme.[72]

94 The President observes that the introductory words in s 13AA(3) ('For the avoidance of doubt, nothing in this Act') might be thought to suggest that it is the leading provision. However, the President further observes, the qualifying words in s 16(2) ('notwithstanding anything to the contrary in this Act') are hardly the type of language one would expect to find in a subordinate provision.

95 In this regard, the President submits that it is relevant that s 13AA(3) was enacted by Act No 82 of 2012 which, as from 10 February 2013, repealed the existing s 13 and enacted a new s 13 together with the new s 13AA;[73] and that, as from the same date, s 13AAA was inserted into the Ombudsman Act 1973 by cognate legislation.[74] Prior to its repeal by Act No 82 of 2012, s 13 contained a subsection (3), as follows:

(3) Nothing in this Act shall authorize the Ombudsman to enquire into or investigate any administrative action taken - by...[listing many of the persons and bodies now found in Schedule 2].

The Explanatory Memorandum for the Bill that introduced s 13AA explained that the new s 13AA(3) 'clarifies that the Ombudsman is not required to enquire into or investigate anything done or omitted to be done by an exempt person or body. This is similar to current section 13(3)'.[75]

96 The President observes that, in the course of the committee stage debate on the Bill in the Legislative Council, Mr Pakula MLC (who now occupies the office of Attorney-General) pressed the then Minister for Employment and Industrial Relations, Mr Dalla-Riva MLC (who was responsible for the Bill in the Council), to answer the following question:[76]

There are a range of organisations that the Ombudsman can inquire into now. Are those organisations going to be the same after the passage of this legislation or not, or are there going to be organisations that the Ombudsman can inquire into now that he will no longer be able to inquire into after this Bill passes?

...as I have indicated the legislation does not seek to alter the Ombudsman's current jurisdiction except as clearly indicated in the bill, such as with the transfer of police jurisdiction to IBAC.

Debate then proceeded on other aspects of the Bill.

97 The President submits that, because (as he would have it) s 13AA(3) essentially maintains the limitation formerly contained in the repealed s 13(3) (while extending that limitation so that it applies to the additional functions newly conferred by ss 13AAA and 13AA), s 13AA(3) should be understood as not intended to override or restrict s 16(2), which operates as the leading provision.

98 In any event, the President submits, the present referral does not refer to alleged actions on the part of any exempt person or body;[78] and action by the Ombudsman pursuant to s 16(2) consequent on the referral will not involve the investigation of any act or omission by or in an exempt person or body. The President submits that it follows that the effect (if any) of s 13AA(3) on s 16(2) does not arise for determination in the current proceeding.

99 The President's principal written submissions then return to a matter on which he has at all times placed particular emphasis, namely the asserted significance of s 13AA(1)(d) of the Ombudsman Act 1973.

100 The President commences this section of his argument by noting that Part III is entitled 'Functions and jurisdiction of the Ombudsman'. He then notes that s 13(1), in Part III, identifies '[t]he principal function of the Ombudsman' (the President's emphasis) as being the function of enquiring into or investigating any administrative action taken by or in an authority (other than certain action). The President observes that the adjective 'principal' assumes that there may be other functions; and that that assumption is borne out by other provisions in Part III. One of the other (non-principal) functions of the Ombudsman referred to in Part III is the function of investigating protected disclosure complaints by or in an authority or a protected disclosure entity, which is mentioned in s 13AAA. Then, paragraphs (a)-(d) of s 13AA(1) identify functions of the Ombudsman that are '[i]n addition to the principal function in section 13 and the function in section 13AAA...'. The last category of additional functions, being the category identified in s 13AA(1)(d), is 'any other functions conferred by or under this or any other Act'. The President points out that there are no functions identified in Part III other than those identified in ss 13, 13AAA and 13AA(1).

101 It follows, according to the President, that when s 13AA(1)(d) identifies the functions of the Ombudsman as extending to any other functions conferred by or under the Act, those other functions must be seen as in addition to the functions referred to in ss 13, 13AAA and 13AA(1)(a)-(c); and that Part III cannot be seen as a final and exhaustive statement of the Ombudsman's functions.

102 In other words, the President submits, because s 13AA(1)(d) specifically and expressly contemplates that 'other functions' may be conferred outside Part III, there is no reason to approach s 16 as if any function it confers must be a function found in Part III - as the Attorney-General (so it is said) assumes. The President contends that it would be inconsistent with s 13AA(1)(d) to read down or limit functions located elsewhere in the Ombudsman Act 1973 (that is, outside Part III) or in other Acts by reference to the functions identified in ss 13, 13AAA and 13AA(1)(a)-(c).

103 The President says that one example of a function outside the Ombudsman Act 1973 is that said to be contained in ss 82 and 83 of the Victorian Inspectorate Act 2011. As indicated above, s 26G of the Ombudsman Act 1973 specifically recognises that the Victorian Inspectorate has oversight of the Ombudsman, but it does not itself set out any functions of the Ombudsman in that regard. However, ss 82-83 of the Victorian Inspectorate Act 2011 (introduced[79] at the same time as s 13AA(1)(d) of the Ombudsman Act 1973) are said to do that. The President says that a function of the Ombudsman under those provisions is to address and respond as required under that Act to recommendations made by the Victorian Inspectorate.

104 According to the President, the function in ss 82-83 of the Victorian Inspectorate Act 2011 could not sensibly be limited by the language (or limits) of the functions otherwise described in ss 13, 13AAA and 13AA(1)(a)-(c). Rather, the President submits, that function is permitted by the unconstrained wording of s 13AA(1)(d).

105 The President acknowledges that s 16 is located in Part IV of the Act, entitled 'Investigations'. However, the President submits, s 16(2) is plainly a function of the Ombudsman. The President says that so much appears to be accepted by the Attorney-General.[80] The President submits that investigating and reporting on a matter referred pursuant to s 16(1) represents the performance of a 'function' of the Ombudsman within the dictionary meaning of the word 'function', in the sense of 'the...intended role' of the Ombudsman.[81] According to the President, such a process of investigation and report is an 'other function conferred by...this...Act' within s 13AA(1)(d).

106 At this point, the President's written submissions turn to the legislative history of the Ombudsman Act 1973.

107 The President points out that, as originally enacted, s 13(1) of the Act (in Part III) defined the principal function of the Ombudsman as being 'to investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies'. He further points out that s 16(1) and s 16(2) (in Division 2 of Part IV) were in the same terms as they are in the current Act; and that s 16(3), now replaced by s 25AB, prescribed the reporting responsibilities of the Ombudsman in respect of a referral under s 16.

108 The President then refers to the abovementioned comment relating to s 16 made by Sir George Reid when introducing the Bill for the Act. The comment, in full, was as follows:[82]

Division 2, comprising section 16, will also be of interest to honourable members for it sets out what is virtually a separate function of the Ombudsman - that of investigating and reporting on any matter referred to him by either House of Parliament, a committee of either House of Parliament or a joint committee of both Houses of Parliament.

The President observes that, apart from the repeal of s 16(3) and the enactment of s 25AB by Act No 82 of 2012, s 16 has remained unchanged. By contrast, s 13 was amended several times after its first enactment, and was repealed and re-enacted (in different form) in 2012/2013.

109 Against that background, the President notes that the question of the interaction between ss 13 and 16 arose in 2010 in the course of the then Ombudsman's investigation of a matter referred by a committee of the Legislative Council, being the probity of the planning and approval processes undertaken by the Government in relation to the Windsor Hotel redevelopment, including the involvement of the Premier, ministers, ministerial staff and their officers.[83]

110 The President notes that, in 2010, s 13 of the Act was the only provision in Part III.[84] The section was entitled 'Functions and jurisdiction'; and it identified the following functions:

• enquiring into or investigating any administrative action taken in any Government Department or Public Statutory Body to which the Act applies, or by any member of staff of a municipal council ('the principal function');
• monitoring compliance by certain individuals or classes of individuals with certain legislation, namely the Prevention of Cruelty Act 1986, Melbourne City Link Act 1995 and the Domestic Animals Act 1994; and
• reviewing the records of the police force.[85]

As already mentioned, the then s 13(3) exempted a number of entities from the Ombudsman's power to enquire or investigate. It commenced with the words: 'Nothing in this Act shall authorize the Ombudsman to enquire into or investigate any administrative action taken - by...'; and it then listed a number of persons and bodies.[86]

111 In relation to a referral under s 16(1), s 16(2) provided (as it still does):

...the Ombudsman shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon.

After the Windsor Hotel redevelopment referral was made, the Government challenged the jurisdiction of the Ombudsman to investigate the matter referred, contending that s 16 was qualified by s 13, so that a referral could not be made of a matter that did not relate to administrative action taken by, or on behalf of, a Victorian Government Department (as defined), a public statutory body (as defined) or a member of the staff of a municipal council.[87] The Government later extended its objection so that it applied to any investigation of the actions of ministerial advisers.

112 The President observes that, nevertheless, the Ombudsman decided to continue with the investigation, on the basis that 'the plain wording of the Act should be given its obvious and plain meaning in preference to the interpretation' advanced by the Government's legal advisers;[88] and that the Ombudsman went on to present his report to the President of the Council and the Speaker of the Assembly.

113 The President proceeds to say that '[f]ollowing the presentation of the Windsor Hotel Report', a suite of amendments to the Act was introduced, including the following changes to Part III:[89]

• Section 13 was repealed and a new s 13 enacted; and ss 13AA and 13AB were inserted.
• The new s 13AA(3) effectively replaced the former s 13(3): see above.
• The new s 13AA(1)(d) made it clear (so the President submits) that Part III was not a complete statement of the Ombudsman's functions: see above.
• Section 13AAA was inserted.

114 The President submits that these changes are significant for three reasons.

• First, the President says, the new s 13AA(3) is expressed in wider terms than the repealed s 13(3), and might be read as controlling s 16(2), although the President submits that it should not be read in that way: see above.
• Secondly, the addition of new s 13AA(1)(d) should be understood in light of the controversy over the Ombudsman's jurisdiction pursuant to s 16 that occurred in 2010. In particular -

(a) Section 13AA(1)(d) resolved that controversy by expressly recognising that the Ombudsman's functions were not exhaustively stated in Part III. Rather, the Ombudsman's functions could also found elsewhere in the Act or in any other Act.

(b) The Ombudsman's function that was questioned by the then Government in the context of the Windsor Hotel referral was a function located in another part of the Act, namely s 16.

(c) The new s 13AA(1)(d) provided a clear basis for disposing of any argument such as the argument raised by the then government in 2010 and the argument raised by the Attorney-General in the current proceeding, that s 16 is in some way limited by the provisions in Part III.

• Thirdly, the changes made did not include any relevant change to s 16 itself, despite the challenge raised by the Government and rejected by the Ombudsman in the Windsor Hotel report. Thus the power of referral pursuant to s 16(1) remained subject to only one exception (for 'a matter concerning a judicial proceeding'); and the Ombudsman's obligation to investigate pursuant to s 16(2) continued to be expressed as 'notwithstanding anything to the contrary in this Act'.

115 Finally, the President's principal written submissions embark on direct responses to the principal written submissions of the Attorney-General.

116 The President notes that the Attorney-General contends, as his basic position, that the power under s 16 to refer matters to the Ombudsman and the scope of the duty to investigate must be subject to the limits of the Ombudsman's functions and jurisdiction in Part III.[90] The President draws from the arguments advanced by the Attorney-General that the asserted limits on the s 16 powers and duty are claimed by the Attorney-General to be derived from the reference in s 13 to 'an authority' as an entity potentially subject to an investigation, and perhaps from the references in s 13AAA to 'an authority' and 'a protected disclosure entity'. The President also infers that the Attorney-General has in mind that the permitted subject matter of a s 16(1) referral and a s 16(2) investigation can only be 'administrative action(s)', reflecting s 13(1), or, perhaps, in addition, 'protected disclosure complaints', reflecting s 13AAA.

117 However, the President submits, the Attorney-General's position ignores entirely s 13AA(1)(d). All words in an Act should be construed as having meaning and effect, he says,[91] and a provision such as s 13AA(1)(d) (one of the items in the catalogue of the Ombudsman's 'additional functions') should not be ignored. The President contends that the Attorney-General's position denies any effect to s 13AA(1)(d) - being a provision which, he says, plainly contemplates the conferral of functions outside the functions conferred by Part III.

118 Turning to the nine matters relating to the broader statutory context of the Act relied upon by the Attorney-General, the President makes a series of submissions in response, which may be summarised as follows:

• As to the first matter, the Attorney-General's reliance on the location of s 16 in Division 2 of Part IV (Investigations) to support the submission that s 16 is merely a trigger for the exercise of the Ombudsman's jurisdiction rather than a conferral of an additional function on the Ombudsman, is answered by the language of s 13AA(1)(d), which directly contemplates that additional functions may be conferred on the Ombudsman outside Part III.
• As to the second matter, the Attorney-General's reliance on the exclusion of exempt persons and bodies from the definition of 'authority' in s 2(1) of the Act assumes, wrongly, that the s 16(1) power and the s 16(2) duty are not freestanding and should be subject to the same limitations as the functions conferred by ss 13, 13AAA and 13AA(1)(a). That is the very question in dispute in the current proceeding. There is no reason why the power of referral, vested as it is in particular institutions of elected representative government, should be constrained by limitations on the other investigative functions of the Ombudsman. It can be assumed that, when it enacted s 16, the Parliament understood that the normal processes of debate and compromise, tempered by political accountability, would be a sufficient check on the exercise of the s 16(1) referral power. The relationship between s 13AA(3) and s 16 has already been dealt with.
• As to the third matter, to say, as the Attorney-General does, that 'the scope and subject matter of the Act' is as articulated in the long title of the Act, begs the question of whether s 16 itself contributes to the identification of that scope and subject matter; and it overlooks the significance of the acknowledgment in the long title itself that the Act provides for 'other purposes'.
• As to the fourth matter, the Attorney-General's attempt to derive support for his construction of the Act from the provision in s 16 that the matter for referral be one which the referring body considers should be investigated by the Ombudsman - a provision which is said to require that the matter be one that is relevant to the Ombudsman's functions identified in Part III - has two weaknesses:

(a) First, as already argued, Part III specifically contemplates that the Ombudsman may have additional functions outside Part III.

(b) Secondly, the more natural reading of the reference to the House or committee considering that the matter 'should be investigated by [the Ombudsman]' is simply to vest in the House or committee the responsibility and power of selecting the matters that are sufficiently important to warrant referral to the Ombudsman for investigation.

• As to the fifth matter, being the Attorney-General's reliance on s 17 of the Act (which prescribes procedures for investigations):

(a) It is clear that there are aspects of the procedures prescribed by s 17 that could not apply to a s 16(2) investigation, even if the subject matter of that investigation were limited in the manner for which the Attorney-General contends: see in particular s 17(1)(a).

(b) It is also clear that other aspects of the procedures which are laid down by the Act for investigations generally, are not intended to apply to a s 16 investigation: compare s 23 with s 25AB.

• As to the sixth matter, being the Attorney-General's invocation of ss 19-19C and 21 (which relate to information-gathering) as bases for limiting the operation of s 16:

(a) Dealing first with ss 19-19C, those sections simply protect certain information: although they may prevent the Ombudsman accessing that information, they do not prevent the Ombudsman investigating a matter referred under s 16(1), any more than they prevent the Ombudsman undertaking an investigation of administrative action taken by or in an authority.

(b) Equally, s 21 does not bear upon the construction of s 16. Section 21 authorises the Ombudsman to enter premises for the purposes of conducting an investigation. This power (with its limitations) applies to an investigation pursuant to s 16(2). Its application to a s 16(2) investigation would not, as the Attorney-General asserts, create two standards of investigation under the Act: to the extent that an investigation under s 16(2) requires entry on premises, the Ombudsman's power to effect that entry is found in s 21; and if that power of entry does not meet the perceived needs of an investigation, the investigation will have to proceed without entry on premises.

• As to the seventh matter, being the Attorney-General's contention that the mandatory language in s 16(2) merely distinguishes the Ombudsman's investigation under that subsection from other investigations by making such an investigation mandatory rather than discretionary, the Attorney-General's argument downplays the force of the language in s 16(2), which expresses a clear intention that the power of investigation is unaffected by any constraints that might otherwise be implied from the balance of the Act.
• As to the eighth matter, being the Attorney-General's contention that s 16 as a whole can be given a sensible construction (i.e. as providing the mechanism by which a House or committee may require the Ombudsman to exercise his or her functions or jurisdiction under Part III) without implying a broad ad hoc power, such a construction would involve a significant reading down of s 16; and, for the reasons previously stated, s 16 should be given its full effect according to its terms.
• As to the ninth matter, being the Attorney-General's invocation of s 27, his reliance on that section is misplaced because:

(a) Section 27(1) permits any party the subject of an investigation (without limitation - because s 27(3) does not exhaust the content of 'the party subject to the investigation') to apply to the Supreme Court of Victoria.

(b) Although, unlike s 27(1), s 27(3) will only operate where an authority or protected disclosure entity is affected by an investigation, nevertheless, if there is no such authority or entity, the deeming provision will simply not operate. In that situation, a person who wishes to invoke s 27(1) will need to demonstrate to the Supreme Court that he or she is 'the party subject to the investigation'.

(c) There is nothing in the terms or operation of s 27 that suggest any limit on the scope of s 16.

119 Finally, the President submits that the Court should grant relief in the form of a declaration that the Ombudsman has jurisdiction to investigate and report on the referral made by the Legislative Council on 25 November 2015.

Attorney-General's written reply to the principal written submissions of the President

120 I turn now to the written reply of the Attorney-General dated 22 April 2016.

121 The Attorney-General describes the President's primary submission as being to the effect that s 16 confers an independent and unbounded power to make a referral and an independent obligation to investigate and report. The Attorney-General attributes the President's primary submission (as so identified) to a literal construction of the words in s 16. The Attorney-General submits that such a literal construction, 'divorced from the text, purpose and context' of the Act, ignores all principles of statutory construction, and leads to an 'absurd' result in which the Parliament could effectively direct the Ombudsman to investigate and report on any matter at all, entirely untethered to the scope and subject matter of the Act. According to the Attorney-General, this would extend to matters relating to private companies or individuals, corrupt conduct, judicial misbehaviour, criminal activity, or the broadest questions of public policy. The Attorney-General submits that such a construction would provide no rational or coherent basis for the exercise of the power of referral, with the only limit being the curiosity of the relevant House or committee.

122 The Attorney-General submits that the ambivalence in the President's submissions relating to s 13AA(3) is telling. He submits that it is not permissible to leave s 13AA(3) to one side in the construction of the Act merely because it is not raised by the facts.[92]

123 Nor, the Attorney-General says, should s 13AA(3) be minimised by saying that it must give way to the phrase 'notwithstanding anything to the contrary in this Act' in s 16(2). Rather, according to the Attorney-General, that phrase should be understood as converting 'what would otherwise be a discretion into a duty'.[93] The Attorney-General submits that this also alleviates the conflict that would otherwise arise between ss 13AA(3) and 16(2); and that it should therefore be preferred. As to the President's submissions referring to the debate on the relevant amending Bill that introduced s 13AA(3) into the Act, the Attorney-General submits that legislation is not to be construed by reference to the comments of individual members of Parliament.[94]

124 The Attorney-General submits that once it is accepted, 'as it must be', that s 13AA(3) controls s 16(1), the literal construction falls away: there can be no rational basis on which to ignore the text, purpose and context of the Act.

125 Turning then to the submitted textual bases for the President's construction, the Attorney-General submits that they are flawed.

126 The Attorney-General does not dispute that the Ombudsman may be conferred with functions outside of Part III of the Act, but says that the existence of s 13AA(1)(d) does not assist in identifying what the content of such a function will be - it simply recognises that such a function may exist.

127 The Attorney-General submits that s 16, properly construed by reference to a range of considerations, including the structure of the Act, does not confer any jurisdiction or functions on the Ombudsman. Further, the Attorney-General submits, the 'inconclusive' legislative history behind s 13AA(1)(d) cannot displace the Attorney-General's construction, which is more properly founded in the text, purpose and context of the Act.[95]

128 The Attorney-General proceeds to observe that, even if the task identified in s 16 were a separate function, it would be the function of investigating matters referred by the Parliament and reporting to the Parliament in accordance with s 25AB. According to the Attorney-General, characterising it as a function says nothing about the scope of that function.

129 Next, the Attorney-General turns to the President's submission that the phrase 'other than a matter concerning a judicial proceeding' provides the only limitation on s 16(1) and that the phrase would have no work to do if s 16 were construed as only allowing the Ombudsman to investigate and report on matters within the Ombudsman's functions in Part III of the Act, because, by virtue of express provisions in the Act, those functions do not extend to Victorian courts or VCAT.

130 The Attorney-General contends that that submission does not help resolve the present constructional question, because it assumes that the exemption (in s 16(1)) does not have an overlap with other restrictions, both express and necessarily implied, on the scope of the Ombudsman's power. According to the Attorney-General, it assumes that the phrase 'other than a matter concerning a judicial proceeding' is the only limitation bearing on the ability of the Ombudsman to investigate matters touching on courts and the judicial process. However, the Attorney-General comments, that assumption goes to the question to be decided.

131 According to the Attorney-General, the fact that there may be an overlap and that, correspondingly, the express exemption is covered in other places is neither surprising nor a reason to favour the President's 'unbridled' construction: it is the scheme of the Act, rather than the construction advanced by the Attorney-General, which means that the express exemption is likely to have a relatively confined operation.

132 The Attorney-General submits that the scope of the express exemption, given the other textual and contextual matters that exclude the judicial process, including s 13AA(3), provides no reason for construing the limitation as being the only limitation on s 16(1).

133 Next, the Attorney-General returns to the President's reliance on the phrase 'notwithstanding anything to the contrary in this Act' in s 16(2). The Attorney-General submits that the phrase can be given meaning without according to s 16 the broad construction for which the President contends. The Attorney-General notes that the phrase does not appear in s 16(1), which defines the scope of the matters that may be referred to the Ombudsman. Rather, it appears in s 16(2), which comes into play only after a matter has been validly referred to the Ombudsman under s 16(1). As already mentioned, the Attorney-General contends that the significance of the phrase is that it converts what would otherwise be a discretion into a duty.

134 The Attorney-General submits that this more limited construction of s 16(2) provides for a more harmonious and coherent construction of the Act as a whole and should therefore be preferred.[96] In this regard, the Attorney-General submits that, if the President's construction were correct, the Ombudsman would be required to investigate and report on a matter referred under s 16, despite:

• s 13AB(1), which provides that the Ombudsman must not perform his or her functions or duties or exercise his or her powers in a manner that would prejudice any criminal proceedings or criminal investigations, or investigations by the IBAC or the Victorian Inspectorate;
• s 15, which provides that the Ombudsman must refuse to deal with certain complaints; and
• s 15D, which provides that the Ombudsman must refuse to investigate certain protected disclosure complaints.

135 The Attorney-General further submits that his construction is supported by a consideration of the Act as it was originally enacted. He points out that, in the Act in its original form:

• Section 14 provided that the Ombudsman 'may conduct an investigation under this Act either on his own motion or as a consequence of a complaint';
• Section 15 provided that the Ombudsman might refuse to investigate complaints in certain circumstances; and
• Section 16(2) provided, as it does now, that where a matter was referred to the Ombudsman pursuant to s 16(1), the Ombudsman was required to investigate that matter, 'notwithstanding anything to the contrary in this Act'.

Thus, according to the Attorney-General, from the commencement of the operation of the Act, the effect of the phrase 'notwithstanding anything to the contrary in this Act' was merely to remove the discretion to refuse to investigate complaints otherwise conferred on the Ombudsman under s 15, and to impose a duty on the Ombudsman to investigate. The amendments to the Act since 1973 have not altered the intended meaning of that phrase, the Attorney-General says.

136 Next, the Attorney-General refers to the President's submission that the Attorney-General's construction would result in a House or committee being in the same position, for the purposes of a referral under s 16, as an individual member of Parliament acting on behalf of an aggrieved person pursuant to s 14(1)(b) of the Act. This is not correct, the Attorney-General says. Referring back to his principal written submissions, the Attorney-General asserts that there are a number of kinds of 'complaints' that will trigger an investigation by the Ombudsman under Part IV of the Act. He refers here to Divisions 1, 1A, 2 and 2B of Part IV.[97] He submits that these are effectively provisions relating to standing - they provide, he says, for those persons who will have standing to trigger an investigation by the Ombudsman.

137 Against this background, the Attorney-General includes the following paragraph in his reply submissions:[98]

There is a radical distinction between the standing of 'a member of Parliament acting on behalf of an aggrieved person' under s 14(1)(b) and the standing of a House or committee to refer a matter to the Ombudsman under s 16. In the case of the former, a member will only be able to act where an aggrieved person exists and seeks the assistance of the member of Parliament, and any such complaint will be subject to the limitations prescribed by the Act with respect to complaints made under Division 1 of Part IV. In the case of the latter, a House or committee is not required to be aggrieved, but may simply refer matters for investigation that the House or committee considers should be investigated by the Ombudsman. Further, once a matter is referred, the Ombudsman will have no discretion to refuse to investigate, and must report in accordance with the unique reporting requirements set out in s 25AB of the Act. Indeed, it is this distinction that explains the use of the word 'matter' in s 16: Parliament is not required to be aggrieved in order to make a complaint, but only to consider that it is appropriate that a matter should be referred to the Ombudsman for investigation and report.

138 Turning to the President's submissions relating to the legislative history, the Attorney-General submits that the matters relating to the Windsor Hotel redevelopment are irrelevant. He submits that the actions of the previous Ombudsman were beyond power and that such unauthorised actions cannot serve to expand the scope of the Ombudsman's statutory power. Further, the Attorney-General submits, the matters referred to do not fall within the concept of legislative history and are not legitimate extrinsic materials.

139 According to the Attorney-General, the amendments that were made following the presentation of the Windsor Hotel report do not, in any event, detract from the Attorney-General's construction of s 16. In fact, he says, the introduction of s 13AA(3) works in favour of his construction (indeed he attributes to the President a concession to this effect); and he says that s 13AA(1)(d) is of no significance, for the reasons previously given. The Attorney-General submits that s 16 must be construed by reference to the text, purpose and context of the Act, not by reference to a failure to amend that provision in response to various actions by the Ombudsman.

140 Finally, the Attorney-General disputes that it is proper or relevant to assume that Parliament, when it enacted s 16, understood that 'the normal processes of debate and compromise, tempered by political accountability, would be a sufficient check on the exercise of the s 16(1) referral power', as submitted by the President. The Attorney-General submits that any such assumption is completely without statutory footing and contrary to the essential proposition that statutes must be construed by reference to the text read in context.

141 Turning to the oral hearing conducted on 9 and 10 May 2016, it is desirable to summarise what was said, particularly insofar as the parties developed, added to or departed from what was contained in their prior written submissions.

142 At the outset of the hearing, counsel for the Ombudsman briefly introduced the case and indicated that the Ombudsman remained neutral and did not wish to say anything more at that stage.

143 At the beginning of the second day, senior counsel for the Ombudsman rose to correct something that had been wrongly reported in the media about this case.[99] Later on, senior counsel for the Ombudsman informed me that, on her instructions, no Rules of Parliament under s 26 or under s 31 of the Act currently exist.[100] Later again, in relation to a debate between the other parties as to the relationship, if any, between the Windsor Hotel redevelopment matter and the 2012/2013 legislative amendments, senior counsel for the Ombudsman informed the Court that, according to her instructions, which had been provided after a search, there was no express reference to the Windsor Hotel matter in any explanatory memorandum or second reading speech relating to any of the Bills for the suite of integrity legislation introduced in 2012/2013.[101] Otherwise, no substantive submissions were made orally on behalf of the Ombudsman.

144 The Attorney-General began by describing the President's construction of s 16 as being 'completely unbounded' by the scope, purpose and object of the Act and 'unbridled', such that it would permit a House or committee of the Parliament to refer to the Ombudsman any matter at all, other than a matter relating to a judicial proceeding. This construction would be in conflict, he said, with the restriction in s 16(1) whereby the House or committee of the Parliament is to refer (only) a matter which it considers should be investigated by the Ombudsman. On the President's construction, he said, the 'organising principle' of the legislation would become whatever the House or committee thought fit.[102]

145 Asked whether there might be a half-way house in which certain restrictive provisions in the Act that seem to apply to the operations of the Ombudsman generally, such as s 13AA(3),[103] might extend to an investigation under s 16, the Attorney-General responded, initially, that s 13AA(3) was expressed to operate only for the avoidance of doubt.[104] As a more general response, the Attorney-General submitted,[105] as I understood him, that there is no scope, and no need, for s 13AA(3) to have direct application to referrals under s 16. He said that this is because of the anterior operation of what he referred to as the true 'organising principle' of the Act. The true organising principle, he submitted, is 'administrative action taken by or in an authority'. As will be recalled, this is an expression contained in s 13(1) of the Act, being the section relating to the principal function of the Ombudsman. According to the Attorney-General, 'administrative action taken by or in an authority' has been the organising principle of the Act ever since the Act came into force in 1973. He said that this organising principle delineates the class or broad subject matter of a permissible referral under s 16 of the Act, from which there are express exclusions, such as administrative action that appears to involve corrupt conduct (s 13(1)(a)) or that is taken under the Freedom of Information Act 1982 (s 13(1)(b)). Moreover, he submitted, s 2 of the Act defines 'authority' in such a way that 'an exempt person or body' is already excluded from the meaning of 'authority'. Hence, according to the Attorney-General, there is no occasion for s 13AA(3) to operate in relation to a referral under s 16.[106]

146 As a further attack on the President's 'unbridled' construction of s 16, the Attorney-General submitted that the President's construction would undermine the capacity of the Ombudsman to perform her work, in that a vast range of matters could be referred to the Ombudsman by the Houses and committees of the Parliament and, in each case, s 16(2) would remove any discretion from the Ombudsman to decline to investigate the matter; and, moreover, the Ombudsman would in each case be obliged under s 16(2) 'forthwith' to investigate the matter and report on it.[107]

147 Next,[108] there was a discussion about a case decided in 1976 but not referred to by the parties, namely Glenister v Dillon.[109] I referred to what had been said by the Full Court of this Court in that case, and I raised for comment the proposition that, on one view, Glenister v Dillon indicated that, as the Act stood originally and as it remained in 1976, s 16 would have authorised a Parliamentary referral of a matter that went beyond the confines of the Attorney-General's 'organising principle' - even a matter relating to the legislature or to an individual member or members of Parliament. The Attorney-General did not accept that Glenister v Dillon so indicated. Even if it did, he said, this would not mean that it was necessary to demonstrate that the Act had since been impliedly amended. Rather, he submitted, primary attention should be given to the express terms of the Act in its current form, not to previous versions of the Act. This discussion was left on the basis that Glenister v Dillon might be re-visited later. Indeed, the question of the status and significance (if any) of Glenister v Dillon was one of the three designated topics on which I later gave the parties leave to make written submissions.

148 Returning to the current form of the Act, the Attorney-General was asked whether s 13AB[110] (if not also s 13AA(3)) might contribute to a construction of the Act somewhere between the two extremes. The Attorney-General acknowledged that s 16(2) would have to be reconciled with s 13AB in some way.[111]

149 Next, the Attorney-General was referred to the contrast between the unstructured reporting requirements of s 25AB of the Act applicable to an investigation under s 16, on the one hand, and the detailed steps required by s 23 of the Act to be taken by the Ombudsman on the completion of most other kinds of investigation, on the other hand. The Attorney-General submitted that this contrast did not hinder his construction. Rather, he said, it supported the view that the referral power should be read as constrained by the Act. Otherwise, he said, there would be an 'unbridled' referral power and an 'unbridled' reporting power.[112]

150 The Attorney-General then took me in detail to Cunneen[113] and noted that the majority in the High Court had described the phrase 'adversely affect' in the ICAC Act as a 'protean expression'. He submitted that, likewise, the expression 'any matter' in the Ombudsman Act 1973 was 'plainly of the broadest potential connotation capable of a number of meanings according to the context in which it appears'.[114] He equated the unsuccessful submission made by ICAC in Cunneen concerning the meaning of the phrase 'adversely affect' with the President's submission in the present case concerning the meaning of 'any matter'.[115] In both instances, he said, the error was to ignore context.[116] The salient features of the present context are, he submitted, the existence of the class 'administrative action taken by or in an authority' and the express exclusions calibrated by reference to that class.[117]

151 Next, the Attorney-General described schematically the principal provisions in Parts III and IV of the Act.[118] He then drew particular attention to the references to 'corrupt conduct' in the Act and in related provisions of the IBAC Act. He submitted that these provisions make it clear that the Ombudsman has no business investigating corrupt conduct, except in the special case of an IBAC referral of a protected disclosure complaint. He observed that, under the statutory scheme, elaborate steps were required before any such IBAC referral might occur. According to the Attorney-General, these provisions simply do not sit with the President's contention that a matter involving or appearing to involve corrupt conduct could be referred to the Ombudsman under s 16 of the Act. Such a result could only be achieved on the basis (which was 'more than unlikely') that s 16(2) 'obliterates all limitations and trumps the very carefully calibrated, interrelated scheme of oversight of corrupt conduct'.[119] He submitted that only IBAC (and not any mere House or committee of the Parliament) has been entrusted by the legislature with the power to determine how corrupt conduct should be investigated. Although there may have been no corresponding restrictions in the Act when it was first enacted in 1973, the statutory regime has now 'completely changed'.[120] Once again, the Attorney-General contended that this did not amount to a submission that s 16 has now been impliedly amended. Rather, he submitted, the scope of s 16 'comes up and down' depending on the functions that are given to, or taken away from, the Ombudsman.[121] He proceeded to say that any matter 'involving administrative action taken by or in an authority' could be referred under s 16;[122] and that s 16 is merely one of several triggers for the exercise of the Ombudsman's investigatory powers.[123] On the other hand, he said s 16 serves a useful purpose in that it can overcome the absence of a complainant. Indeed, the Attorney-General submitted, s 16 can be employed in relation to administrative action even if no person has been affected by the administrative action.[124]

152 As to IBAC referring things involving corrupt conduct to the Ombudsman, the Attorney-General pointed out that, under s 13AA(1)(a) of the Act, such a referral could only be made in relation to 'administrative action taken by or in an authority'. He submitted that this supported his contention that s 16 was similarly limited.[125]

153 Returning to my suggestion of a possible half-way house between the two extreme constructions, the Attorney-General reiterated that it was not satisfactory to construe s 16 as conferring on the Ombudsman investigatory powers that were unlimited save for the express exclusions or restrictions set out in Act.[126]

154 The Attorney-General submitted that s 16 added to the Act a capacity for a House or committee of the Parliament to refer to the Ombudsman a matter that it considered should be investigated and reported on by the Ombudsman (having regard to the functions and powers of the Ombudsman). It was clear, he said, that Parliamentary bodies have a proper interest in due administration on the part of agencies and authorities.[127]

155 The Attorney-General then turned to the matter of exempt persons and bodies, describing this as another very important part of the scheme. His point was that other specialist bodies - not the Ombudsman - were to investigate exempt persons and bodies. He gave the example of police personnel who, until 2012/2013, fell within the scope of the term 'authority' (and were thus subject to the ordinary jurisdiction of the Ombudsman) but who are no longer covered in that way. Nor do police personnel fall within the defined term 'protected disclosure entity': so they are not subject, either, to the extended jurisdiction of the Ombudsman referred to in s 13AAA of the Act. Hence, according to the Attorney-General, it would not be rational for a House or committee to consider that administrative action by the police should be investigated by the Ombudsman.[128] The Parliament as a whole has determined what the functions of the Ombudsman are to be - it is not to be thought that a single House or committee might determine, in an unconstrained way, by referrals, the functions of the Ombudsman.[129]

156 According to the Attorney-General, the position of the Ombudsman as the potential recipient of a referral is hedged about by two significant limitations - first, by the Ombudsman's function as an investigator of 'administrative action'; and, second, by statutory withdrawals of specified things from the class of 'administrative action' - for example, the police ('gone to IBAC'), corrupt conduct ('gone to IBAC') and freedom of information ('gone to the Freedom of Information Commissioner').[130] The Act was now 'very heavily regulated', which meant that any observations which may have been made about how s 16 worked when the Act was in its previous, simpler form were of little or no value today.[131] (Here, the Attorney-General was adverting to Glenister v Dillon.)[132] For example, he said, the express exception in s 16 for 'a matter concerning a judicial proceeding' was now overtaken or overshadowed by the provisions excluding various legal bodies from the definition of 'authority'.[133] Thus, he submitted, one cannot start from the proposition that 'any matter' is a universe from which there is only a single 'carve out': to do so would be to repeat the error that was made in Cunneen.[134]

157 Next, the Attorney-General spoke to the parts of his written submissions that concerned the inferences to be drawn from ss 17, 21 and 27 of the Act.[135] In particular, he submitted that any suggestion that the Ombudsman might investigate a member of Parliament (except as a 'protected disclosure entity') was not within the contemplation of those sections.[136] The Parliament itself had other well established mechanisms for investigating and keeping control of its members - such as an inquiry by a relevant Parliamentary committee - which could have been utilised to investigate the very matter the subject of the referral presently in question.[137]

158 The Attorney-General next referred to what had been said in December 2012 in the Legislative Council by a Minister of the then Government in relation to the Integrity and Accountability Legislation Amendment Bill 2012, as follows:[138]

The Ombudsman will continue to be able to investigate the corrupt conduct of any person or body within his jurisdiction on referral from IBAC. The requirement to refer all potential corrupt conduct to IBAC ensures that IBAC is aware of that conduct and can determine whether to investigate it itself or refer it to another body. It is appropriate that IBAC be informed of all potential corrupt conduct within the public sector given its position as the peak integrity body. This information will assist IBAC to discharge its responsibilities in relation to corrupt conduct.

159 Then the Attorney-General turned to the concept of a 'protected disclosure'. He referred to the definition of 'protected disclosure entity' in s 2 of the Act (which includes a member of Parliament)[139] and to the function of the Ombudsman under s 13AAA to investigate 'protected disclosure complaints' about conduct by or in 'an authority' or a 'protected disclosure entity'. He noted that a 'protected disclosure' may be dealt with by the Ombudsman if IBAC determines that it should be referred to the Ombudsman for investigation under s 13AAA as a 'protected disclosure complaint'. Similarly, he noted that the Ombudsman's 'additional' function under s 13AA(1)(a) of enquiring into or investigating any administrative action taken by or in an authority that appears to involve corrupt conduct is exercisable on a referral from IBAC under Division 5 of Part 3 of the IBAC Act.[140]

160 According to the Attorney-General, it could be seen that each 'trigger point' for an investigation (complaint, own-motion investigation, parliamentary referral and referral of a protected disclosure complaint or referral of administrative action involving corrupt conduct) has regard to the nature and function of the Ombudsman as an investigator of administrative action or as an investigator of protected disclosures. The Attorney-General submitted that this system would be completely undermined if s 16 were construed as the President would construe it. There would be a departure from a scheme which is harmonious as between the functions and powers of the Ombudsman towards 'a completely disengaged floating advisory body on any matter' which did not have the concomitant powers or speciality.[141]

161 Further, the Attorney-General submitted, the statutory extension of the Ombudsman's functions so as to include protected disclosure complaints pursuant to s 13AAA was important, because this was the place where the Act reached a member of Parliament (as a 'protected disclosure entity'). It did so in a very specific way, he said, as part of a statutory regime in relation to which close attention needed to be given not only to the Act but also to the Protected Disclosure Act 2012 and the IBAC Act. All three Acts needed to be read together. It would be extraordinary, he submitted, if s 16(1) provided an alternative and unconstrained path to the same area.[142]

162 The Attorney-General then took me to Part 1 of the Protected Disclosure Act 2012 and in particular to the definition of 'improper conduct' in s 4 thereof,[143] observing that the language of the definition is similar to that considered in Cunneen. The Attorney-General then referred to Division 1 of Part 2 to demonstrate how 'disclosures' could be made under the Act. He pointed out that s 9 (within Division 1) provides, among other things, that a natural person 'may disclose in accordance with this Part' information which tends to show that a person, public officer or public body has engaged in 'improper conduct'. He then referred to Division 2, consisting of ss 12-19, which, as indicated above, deal with how and to whom a disclosure might be made. He mentioned that, by virtue of s 12, a disclosure under Part 2 is required to be made in accordance with the prescribed procedure; that s 13(1) provides that, unless required to be made to another entity under ss 14-19, a disclosure under Part 2 is required to be made in accordance with s 13; and that s 13(2) provides that a disclosure can be made to IBAC or to 'an investigating entity' and that the Ombudsman is an 'investigating entity' as defined. The Attorney-General then noted that by virtue of s 14, a disclosure under Part 2 that relates to certain listed persons is required to be made to IBAC. The list includes ministerial officers, parliamentary advisors and electorate officers. Under s 19, a disclosure under Part 2 that related to a member of the Legislative Assembly is required to be made to the Speaker of the Legislative Assembly, and a disclosure under Part 2 that relates to a member of the Legislative Council is required to be made to the President of the Legislative Council.

163 The Attorney-General then took me to Part 3 of the Protected Disclosure Act 2012. He pointed out that s 21 applies if a disclosure is made to an entity other than IBAC or the Victorian Inspectorate and the entity considers that the disclosure may be a protected disclosure. Generally speaking, except in the case of a disclosure about a member of Parliament made to a Presiding Officer under s 19, the entity is required to notify the disclosure to IBAC for assessment under Part 3. As to disclosures relating to members of Parliament, the Attorney-General noted that s 21(3) provides:[144]

(3) If the disclosure is made to a Presiding Officer under section 19, the Presiding Officer may notify the disclosure to the IBAC for assessment under this Part.

164 Next, the Attorney-General referred to s 26 of the Protected Disclosure Act 2012 which falls within Division 2 of Part 3 of that Act. The effect of that section is set out above. It will be recalled that, in short, s 26 requires that IBAC assess whether a disclosure is a protected disclosure and then IBAC may make a referral under s 73 of the IBAC Act. The Attorney-General submitted that this is important, because the Ombudsman might have jurisdiction in relation to conduct complained about (which might fall within the definition of improper conduct) without the matter going through the protected disclosure pathway, but only insofar as the conduct forms part of 'administrative action taken by or in an authority'. If the matter appears to involve corrupt conduct, then, according to the Attorney-General, the Ombudsman would only have jurisdiction to investigate it on a referral from IBAC: he referred to s 13(1)(a) and s 13AA(1)(a) of the Ombudsman Act 1973 in support of this submission. Moreover, the Attorney-General submitted, there is no jurisdiction in the Ombudsman to investigate improper conduct in relation to a protected disclosure entity (such as a member of Parliament), other than by way of a protected disclosure complaint.[145] In other words, the Attorney-General submitted, there was an extension of the category of persons and bodies that could be investigated by the Ombudsman so as to include a protected disclosure entity, but only through the protected disclosure pathway, which required the interposition of IBAC.[146]

165 Further, the Attorney-General submitted, when a protected disclosure complaint comes back to the Ombudsman, having gone through the IBAC determination process, the Ombudsman is subject to significant restrictions in relation to the investigation of it. In particular, the Attorney-General submitted, the Ombudsman would be prevented by s 15D(1) from dealing with a protected disclosure complaint if conducting an investigation into it would be contrary to s 13AB. Further, under s 15D(2), the Ombudsman must refuse to conduct an investigation on a protected disclosure complaint unless the Ombudsman is reasonably satisfied that the complaint tends to show that the authority or the protected disclosure entity has engaged in or is engaging in 'improper conduct' (or has taken or is taking 'detrimental action' against a person in contravention of s 45 of the Protected Disclosure Act 2012).

166 What all of this shows, according to the Attorney-General, is a very elaborate and calibrated regime that applies in relation to any suggestion that the Ombudsman might investigate a member of Parliament, being a regime involving very significant processes and safeguards. He submitted that the existence of this elaborate regime informs the proper construction of s 16 of the Ombudsman Act 1973. To treat the general language of s 16 as permitting an unrestricted and unconstrained referral of conduct in relation to a member of Parliament would be incompatible, the Attorney-General submitted, with the scheme erected by the interaction of the three Acts in question.[147]

167 The Attorney-General then made some further provisional submissions[148] about Glenister v Dillon,[149] but I will not stay to summarise them because they were overtaken by the written submissions subsequently filed in relation to that case.

168 Next, there was some discussion as to whether the historical privileges and immunities of members of Parliament were relevant to the question whether a matter relating to the conduct of a member of Parliament could be referred pursuant to s 16 of the Act. This was not a matter that had been referred to in the parties' prior written submissions. It was a matter which I raised at the hearing and it became the second topic on which the parties were given leave to file post-hearing written submissions. I will set out the parties' written submissions on that topic in due course, but for immediate purposes it is sufficient to note that the Attorney-General submitted orally that, even if his main submission relating to the 'organising principle' of the Ombudsman Act 1973 was not accepted, nevertheless he relied on the special position of members of Parliament for the proposition that their conduct could not be the subject of a referral under s 16.[150]

169 Next, the Attorney-General submitted that there was nothing in the President's contention that a separate function, beyond Part III of the Ombudsman Act 1973, could be found in the obligation of the Ombudsman to respond as required to recommendations made by the Victorian Inspectorate pursuant to ss 82-83 of the Victorian Inspectorate Act 2011. The Attorney-General submitted that the Victorian Inspectorate would only ever be making recommendations in relation to the performance of the Ombudsman's functions under Part III of the Ombudsman Act 1973 itself.

170 The final point made in the Attorney-General's principal oral submissions involved drawing attention to the following sentence in the judgment of Warren CJ and Osborn AJA (as the latter then was) in Maroondah City Council v Fletcher:[151]

Where construction of separate but related legislation is simultaneously required, the object is to arrive at a construction of the provisions which assumes that Parliament intended its legislation to operate harmoniously or, in other words, rationally, efficiently and justly together.

171 I turn now to a summary of the submissions made orally on behalf of the President of the Legislative Council.

172 The President began by emphasising the actual terms of the referral and by pointing out that the question contained in the originating motion was whether the Ombudsman had jurisdiction to carry out an investigation pursuant to that particular referral. This led immediately to some provisional submissions relating to the privileges of Parliament and of members of Parliament. As with the corresponding oral submissions of the Attorney-General, I will omit referring to the President's oral submissions in this regard,[152] save to note that the President contended orally that the power of Parliament to regulate or control its internal affairs was a power that attached separately to each House, rather than to Parliament as an institution; that, in the present case, one House had referred to the Ombudsman a matter that directly related to its internal affairs and discipline; that there was nothing in the existence of the privileges of the Legislative Council that denied to it the opportunity to take advantage of a provision such as s 16(1); and that the House was not constrained to deal with a matter such as the matter covered by the resolution without the assistance of the Ombudsman, if that assistance was available.[153] In the course of the President's provisional submissions in this regard, mention was made of s 19(1) of the Constitution Act 1975, which relates to the privileges, immunities and powers of the Houses, committees and members of the Victorian Parliament.[154] The President also referred to s 94E of the Constitution Act 1975, being the provision set out above which relates specifically to the Ombudsman.

173 The President submitted that it was 'not at all bizarre' to start with an assumption that Parliament understood that decisions as to the content of any referral would be made by one of the entities identified in s 16(1), and then to proceed to the proposition that Parliament as a whole trusted the judgment of those institutions as to what they considered should be investigated by the Ombudsman.[155]

174 That submission, in turn, led to a request on my part for more information about the nature of, and the rules relating to, committees of the Victorian parliament. I enquired whether such information might bear on the proper construction of s 16 of the Act. This matter became the third designated topic on which the parties were given leave to file post-hearing written submissions. So, again, for corresponding reasons, I will omit reference to what the parties said orally about this topic, save to note that the President said that, when the Bill for the Ombudsman Act 1973 was passed originally, Parliament understood something about its own workings, and should be taken to have vested in the Houses and committees of the Parliament the authority and power to identify the matters which, with one exception, might be the subject of a referral to the Ombudsman for investigation and report.[156]

175 Turning again to the relationship between s 16 and other provisions in the Act, the President submitted that there may be specific limitations on what the Ombudsman can do under s 16(2) on a referral: for example, he submitted, s 13AA(3) may impinge on what the Ombudsman can do under s 16(2). Likewise, the complicated provisions relating to protected disclosure complaints may also impinge on what the Ombudsman can do. However, according to the President, these matters stood apart from the real case that had, necessarily, been presented by the Attorney-General: the Attorney-General had needed to, and had sought to, travel beyond specific carve outs of these kinds. According to the President, the Attorney-General had needed to show that there was a more general limitation on s 16, which was to be derived from the descriptions in the Act of the Ombudsman's functions, especially the description in s 13(1) of the Ombudsman's 'principal function'. As characterised by the President, the Attorney-General's central argument had been that the various positive aspects of the Ombudsman's functions set out in ss 13, 13AAA and 13AA marked the outer limits of any matter that could be the subject of a referral. Then, according to the President, the Attorney-General had relied in a subsidiary way on certain negative restrictions, such as the provisions relating to protected disclosure complaints.[157]

176 The President observed that the positive conferrals of functions on the Ombudsman in Part III included the one found in s 13AA(1)(d). It would be a peculiar form of drafting, he submitted, to acknowledge within Part III that functions could be conferred on the Ombudsman outside Part III, while at the same time saying that the functions conferred by Part III limited those other functions. Yet that, he said, was the submission that had been made for the Attorney-General.

177 In this regard, I put to counsel for the President that an alternative approach might be simply to read s 16 as though it contained the words 'otherwise within the jurisdiction of the Ombudsman'. Such words would then have an ambulatory effect, rather than being tied to Part III of the Act. As to this, the President submitted that it would be a 'brave' thing to read in such words.[158] Surely, the President submitted, the Court is entitled to take the language of s 16(1) at face value when that language acknowledges only one exception. He asked rhetorically: how would the Court be justified in writing into it another exception, much less a whole raft of further exceptions?

178 As to the Attorney-General's submission that the effect of the words 'notwithstanding anything to the contrary in this Act' in s 16(2) was merely to convert what might have been seen as a discretionary power into an obligation, the President submitted that this was an unlikely explanation for the presence of the phrase, because there was nothing in the other language of s 16(2) which suggested that there was any discretion involved. After all, s 16(2) used the word 'shall'. It was true, the President acknowledged, that there were discretions not to investigate scattered through other provisions in the Act, but they were not the target of the phrase in question because they were discretions that attached only to a 'complaint'. In a s 16 referral by a House or committee of the Parliament no 'complaint' (as defined) was involved, notwithstanding that the heading to Division 2 of Part IV of the Ombudsman Act 1973 was 'Parliamentary complaints'. In that regard, the President observed that s 36 of the Interpretation of Legislation 1984 provides that headings to sections form part of the Act if the Act is one that was passed on or after 1 January 2001. By implication, the President submitted, this heading is not to be regarded as part of the Act, because the Act was passed before 1 January 2001.[159]

179 According to the President, the Act contains relevant provisions that are not easily reconcilable - on the one hand, provisions such as s 13AA(3) and, on the other hand, s 16(2). Therefore, he (again) submitted, it is necessary to decide which is the leading provision, in accordance with the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority.[160] Section 13AA(3) should not be understood as being intended to override s 16(2), he repeated.[161] It was true, the President acknowledged, that the language of s 13AA(3) departs from that of its predecessor, namely the old s 13(3), in that the subject matter of the preclusion, previously described (relatively narrowly) as 'any administrative action taken [by a person or body specified in the old s 13(3)]', is now described as 'anything done or omitted to be done [by or in an exempt person or body]'; and the President further acknowledged that this change added force to the argument against him in this regard.[162] However, if s 13AA(3) did have the effect of constraining what the Ombudsman may do under s 16(2), then, according to the President, this might take some of the sting out of the Attorney-General's complaint that the President's reading of s 16 was too extreme. In any event, the President submitted again, the referral in question does not purport to require the Ombudsman to investigate anything done or omitted to be done by an exempt person or body.[163]

180 Nor, according to the President, could this referral be caught by the provisions relating to protected disclosure complaints (even assuming that those provisions impinge on s 16), because there is no allegation of 'corrupt conduct' or of 'improper conduct'. The matter referred is simply not the type of matter that could be the subject of a protected disclosure complaint, he submitted.[164]

181 In relation to that point, I observed that the material before the Court indicated that somebody had referred the allegations in the referral to the Victoria Police, presumably on the basis that the allegations were said to be serious.[165] (The material contains correspondence between the Ombudsman and the Chief Commissioner of Police in this regard.) I put to counsel for the President that it would be invidious for the Court to have to consider, now, whether or not the allegations contained in the referral were or were not, or might or might not be, allegations of corrupt conduct or improper conduct, if the answer was neither common ground nor obvious; and that, until now, this case had been presented as a case raising a question of statutory construction only.[166]

182 In response, the President simply returned to the submission that, because ss 16(1) and (2) had been left untouched by the various amendments to the Act that had occurred since 1973, the Attorney-General had in truth, despite his protestations to the contrary, been obliged to submit that s 16 had been impliedly amended. A better solution all round, according to the President, was simply to determine that s 16 had not been in any way limited or constrained by the other developments.[167]

183 To end the first day of the hearing, the President reiterated, with emphasis, a principal contention set out in his written submissions, namely that s 13AA(1)(d) confirms that s 16 bestows a separate and independent function on the Ombudsman.[168]

184 When the hearing resumed on the second day, counsel for the President made it clear that nothing he had previously said should be taken as a submission that s 16 of the Ombudsman Act 1973 operates (pursuant to s 19(1) of the Constitution Act 1975 or otherwise) in any way to diminish the privileges of the Houses of Parliament.[169]

185 Next, the President indicated that he would be disputing the Attorney-General's submission that 'administrative action taken by or in an authority' has always been, and still is, the organising principle of the Act.

186 As to the Act in its original form, the President noted that s 13(3) thereof provided:

(3) Nothing in this Act shall authorise the Ombudsman to investigate any administrative action taken -

(a) by a court of law or by a Judge or a magistrate;

(b) by a person acting as legal advisor to the Crown or as counsel for the Crown in any proceeding; or

(c) by a person in his capacity as trustee under the Trustee Act 1958;

(d) by the Auditor General.

The President submitted that the old s 13(3) was an explicit exclusion, and arguably would have applied to s 16. On the other hand, according to the President, the language of the old s 13(3), insofar as it referred to 'administrative action', was tied to that of the old s 13(1). Hence, the President submitted, the fact that s 13(3) was expressed to exclude only 'administrative action' taken by one or other of the listed persons and entities did not imply that the Act as a whole - including, relevantly, s 16 - was concerned only with administrative action. To the contrary, he submitted, if s 13(3) removed anything from the scope of a potential referral under s 16, it removed only 'administrative action [taken by the specified persons and entities]'. Thus, for example, subject to the exception in s 16(1) of a matter relating to a judicial proceeding, a House or committee was able, in 1973, to refer to the Ombudsman a matter relating to a court of law or a judge or a magistrate, provided that the matter was not 'administrative action' taken by the court of law, the judge or the magistrate. So went the first part of the President's submission on this point.

187 The President also took me to s 13(5) of the Act in its original form, which provided that the Ombudsman was not to investigate any 'matter' relating to the terms and conditions of employment of persons in service under an authority unless the Ombudsman considered that the matter merited investigation in order to avoid injustice. The President submitted that, while this provision also might have impinged on s 16, it operated by reference to a 'matter': therefore s 13(5) could not be said to be in any way inconsistent with the President's basic contention.[170]

188 Hence, according to the President, there was nothing in sub-ss 13(3) or (5) of the Act in its original form or, for that matter, in any other provision of the Act in its original form,[171] which lent any support to the proposition that the power of referral under s 16(1) of the Act was limited by reference to the principal function of the Ombudsman set out in s 13(1) thereof.

189 Turning to the current form of the Act, the President submitted that the provisions relating to protected disclosures did not have the effect that a House or a committee could not refer a matter to the Ombudsman where that matter involved or included conduct that could be the subject of a protected disclosure.[172] On the contrary, he submitted that a matter involving conduct that could be the subject of a protected disclosure could also be referred by a House or a committee through s 16. Thus, the President submitted, s 16 provided an alternative avenue for getting such a matter before the Ombudsman. This would be a simpler, more direct way of doing so, as compared to the protected disclosure route.[173] Although this may involve a sweeping aside of the protected disclosure procedure, there is nothing odd about it because the power of referral is given to the Legislative Council, the Legislative Assembly and their committees. It is a power, the President submitted, that has been in the Act since 1973, and it may be presumed that the Parliament, in enacting s 16, understood that it was giving this power to representative bodies which would have a degree of public accountability for their actions. It followed that, in the President's submission, it has always been the case that a House or committee could refer a matter relating to the conduct of a member of Parliament to the Ombudsman for investigation. The power could not be exercised in a way that infringed Parliamentary privilege, but, in the present case, there was no question of infringing Parliamentary privilege because the matter referred does not relate to proceedings in Parliament.[174]

190 Next, the President denied the suggestion (which he said was contained in the Attorney-General's written submissions in reply) that the President was asking the Court to proceed on the basis that, in 2010, the Ombudsman was acting outside his jurisdiction and functions in carrying out the investigation into the Windsor Hotel matter pursuant to a Parliamentary referral under s 16. The President's position was, rather, that the Ombudsman had been acting within his jurisdiction and functions; and that it was significant for interpretive purposes that, nevertheless, s 16 had since remained relevantly unchanged, despite other changes to the Act.[175]

191 The President acknowledged, at first, that it was arguable that a House or committee would have no power refer to the Ombudsman a matter which, were it to come to the Ombudsman by way of a complaint under s 14, the Ombudsman would have no power to investigate because of a provision such as s 15. Ultimately, however, he submitted that s 16 would permit a House or committee to refer such a matter to the Ombudsman and that, in such an event, the Ombudsman would have the power, and the duty, to investigate the matter.[176]

192 In any event, according to the President, even if all of the specific (negative) restrictions or prohibitions on the Ombudsman were applicable to referrals under s 16, the present referral would still be within power.[177]

193 The Attorney-General commenced his oral reply by reiterating the submission that the organising principle of the Act would limit s 16 to a referral of 'administrative action' in relation to an 'authority'. He then said that, 'to some extent', this organising principle had been around since 1973. (This seemed to me to involve a retreat from his earlier submissions as to the meaning and effect of the Act in its original and intermediate forms.) The Attorney-General then referred to the 'specific exceptions and specific extensions' that had been introduced since 1973. He made particular reference to the provisions introduced in 2012/2013 relating to protected disclosure entities which, he submitted, had the effect of extending the Act to a member of Parliament 'for the first time'.[178] This, he contended, engaged the principle of statutory interpretation referred to by the High Court in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia,[179] being, in short, the principle that specific statutory provisions may preclude reliance on general statutory powers.[180]

194 Before developing that particular point, the Attorney-General referred to four High Court decisions said to support the proposition that, in relation to an amended Act, the process of interpretation must focus, at least primarily, on the current state of the Act, as amended. The first case so referred to was Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd[181] in which Brennan CJ, Dawson and Toohey JJ said:[182]

The principle is that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it. The Commonwealth Acts Interpretation Act has no application to South Australian legislation and there is no South Australian counterpart to s 15. However, that section is declaratory and represents the modern approach to the construction of an amended statute. The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment.

Next, the Attorney-General referred to Northern Territory v Collins[183] in which Gummow A-CJ and Kirby J observed that:

... the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed; legislative history and references to the pre-existing law should not deflect the Court from its duty in resolving an issue of statutory construction which ultimately is always a text based activity.

In addition, the Attorney-General cited the following passage from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[184] in which Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

Finally, the Attorney-General referred in this context to Plaintiff S297/2013 v Minister for Immigration and Border Protection.[185] That was a case in which it had been argued that there was a conflict between two mandatory provisions of the Migration Act 1958. One of those provisions was s 85. Justices Crennan, Bell, Gageler and Keane said that, in order to resolve the problem, it was necessary to begin by locating s 85 within the scheme of the Act in its current amended form. Their Honours continued:[186]

'Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible', in the manner indicated in Project Blue Sky Inc v Australian Broadcasting Authority,[187] 'by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions'. The numerous amendments that have been made to the Act form part of its legislative history and bear legitimately on its construction.[188] They are to be construed as part of the Act,[189] so as to be read together 'as a combined statement of the will of the legislature'.[190] The timing of amendments might assist in determining the 'hierarchy' of apparently conflicting provisions of the Act as amended,[191] but notions of 'implied repeal' have no place.

195 Relying on those authorities, and in particular on the last sentence of the extract from Plaintiff S297/2013 set out immediately above, the Attorney-General submitted again that his case did not involve any notion of implied repeal nor any invitation to the Court to read words into s 16.

196 The Attorney-General then took up the President's initial acknowledgment that, arguably, the specific exemptions and extensions in the Act could affect s 16. He directed himself to the situation of members of Parliament in particular. He submitted that, except by the mechanism of a referral by IBAC of a protected disclosure complaint, the Ombudsman could have no jurisdiction in relation to the conduct or behaviour of members of Parliament. It did not matter, he said, whether or not the conduct or behaviour involved 'improper conduct': either way, it could not be the subject of a referral under s 16. If it did involve improper conduct, it was clearly required to be dealt with by other means. If it did not involve improper conduct, nevertheless the very specific treatment in the legislation of the investigation of members of Parliament necessarily excluded the availability of s 16.[192]

197 This took the Attorney-General back to Anthony Hordern.[193] He cited a passage from the judgment of Gavan Duffy CJ and Dixon J in that case,[194] in which their Honours were discussing s 40 of the Commonwealth Conciliation and Arbitration Act 1904-1930. They referred to s 40 as a provision containing an 'affirmative grant', to the Commonwealth Court of Conciliation and Arbitration, of power to give preference in employment, being a power that was subject to certain qualifications expressed in s 40 itself. The issue was whether preference in employment could be given pursuant to another, more general, power of the Commonwealth Court of Conciliation and Arbitration, namely a power to settle industrial disputes. The answer given by their Honours was 'no'. Their Honours said that a grant of power such as the affirmative, but qualified, grant in question 'appears necessarily to imply a negative. It involves a denial of a power to the same thing in the same case free from the conditions and qualifications prescribed by the provision.' The Attorney-General referred also to the observation of McTiernan J in the same case:[195]

As sec. 40 is a special enactment with respect to the power of the Court to award preference, other sections may not be resorted to for the purpose of justifying an award that transgresses the limits defined by that section within which preference may be enjoyed by the members of an organization.

198 Next, the Attorney-General referred to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom.[196] He quoted the following paragraph from the judgment of Gummow and Hayne JJ in that case:[197]

Secondly, there is a confusion of ideas in compounding the doctrine of implied repeal and what was said in Anthony Hordern. That case, and the cases in this Court which have considered it, were concerned with questions of construction of two provisions, both of which remained effective in their terms, with no abrogation, by repeal, of the one by the other.

Applying that passage, the Attorney-General submitted that, if the various express limitations in the Ombudsman Act 1973, such as that contained in s 13AA(3), could apply to s 16, then the amendment of, say, Schedule 2 by the inclusion of a new exempt body would have the result of giving both s 13AA(3) and s 16 a different operation. However, in such an event, s 13AA(3) would still operate in accordance with its own terms, and s 16 would still operate in accordance with its own terms.

199 Dealing again with the particular position of members of Parliament, the Attorney-General noted that s 9 of the Protected Disclosure Act 2012 provides that a 'natural person' may disclose information which shows that a 'public officer' (which would include a member of Parliament) has engaged in improper conduct. Any such disclosure is required to be made in accordance with s 19. That is important, the Attorney-General submitted, because this is the (potential) pathway to IBAC and, ultimately, to the Ombudsman. Under s 19, a disclosure relating to a member of the Legislative Assembly must be made to the Speaker and a disclosure relating to the Legislative Council must be made to the President of the Legislative Council. The next step would be for the Presiding Officer of the relevant House to determine whether or not to exercise the discretionary power conferred by s 21(3) of the Protected Disclosure Act 2012 to notify the disclosure to the IBAC for assessment under Part 3 of that Act. If that were done, then IBAC might or might not decide to refer the conduct to the Ombudsman. According to the Attorney-General, this process cannot be bypassed by using s 16 in the 'simple' way suggested by the President. On the President's construction, a committee of the Legislative Council could refer to the Ombudsman the conduct of a member of the Legislative Assembly. Further, a committee could do so directly, without involving the relevant Presiding Officer or IBAC. According to the Attorney-General, this would represent a distortion of the scheme for investigation of members of Parliament envisaged by the legislation.[198]

200 Still concentrating on members of Parliament, the Attorney-General next referred to the Ombudsman's function under s 13AAA of the Ombudsman Act 1973 to investigate protected disclosure complaints about conduct by or in, relevantly, a protected disclosure entity. He mentioned that, pursuant to s 7 of the IBAC Act, a protected disclosure complaint is taken to be a complaint made to IBAC under s 51 of the IBAC Act and that, in turn, s 73 of the IBAC Act requires IBAC to refer such a complaint to the appropriate body if IBAC itself is not to investigate the protected disclosure complaint. By virtue of s 73(3) of the IBAC Act, IBAC may only refer a protected disclosure complaint, other than one that relates to police personnel, to the Ombudsman or to the Victorian Inspectorate. However, the Attorney-General submitted, under s 15D(2) of the Ombudsman Act 1973, the Ombudsman must refuse to conduct an investigation on a protected disclosure complaint unless the Ombudsman is reasonably satisfied that the protected disclosure complaint relates to 'improper conduct' or 'detrimental action'. Where the Ombudsman is not so satisfied, there will be no other body with authority to investigate the protected disclosure entity (ie, relevantly, the member of Parliament) about whom the protected disclosure complaint was made. According to the Attorney-General, this represents an express negative stipulation which shows, in the starkest of terms, that there is no Parliamentary intention to allow for an investigation of a member of Parliament by the Ombudsman other than by way of a complaint of improper conduct that has gone through the Presiding Officer of the relevant House of the Parliament and through IBAC and has then come back to the Ombudsman. This scheme leaves no room for s 16 to operate, the Attorney-General submitted.[199]

201 The penultimate point made by the Attorney-General in reply related to the provisions contained in ss 19-19C of the Ombudsman Act 1973 insofar as those provisions relate to members of Parliament, Ministers and protected disclosure complaints. The sections themselves are set out above. By reference to those sections and to paragraph (d) of the definition of 'administrative action'[200] the Attorney-General submitted that Parliament had specifically turned its mind to information-gathering in relation to members of Parliament who are Ministers, and has made special provision in relation to such information-gathering in the case of a 'relevant protected disclosure complaint'. According to the Attorney-General, given the specific way in which information-gathering is dealt with under ss 19-19C in relation to relevant protected disclosure complaints, the principle in Anthony Hordern applies such that the generality of s 16 could not be employed to circumvent the processes specified in those provisions.

202 Finally, the Attorney-General pointed out that the concept of 'protected disclosure entity' had even found it way into s 27(3) of the Ombudsman Act 1973, and he submitted that this was yet another indicator of the 'harmony' achieved by his construction of the Act as a whole.[201]

Post-hearing written submissions: the Attorney-General

203 As indicated above, on 20 May 2016 the Attorney-General filed a written submission relating to three designated topics in accordance with leave reserved at the hearing on 10 May 2016. It is desirable to set out the written submission in full, including the footnotes:

FURTHER SUBMISSIONS OF THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Introduction

1. The Attorney-General makes these submissions in response to the order made by Cavanough J on 10 May 2016 that the parties may file and serve further submissions on:

(1) the status, relevance and significance of Glenister v Dillon (Glenister);1

(2) the privileges and immunities of the Victorian Parliament, or of the Houses thereof, or of individual Members thereof; and

(3) the provisions of any statute or any standing orders relating to any committee of either House of the Victorian Parliament or to any joint committee of the Houses of the Victorian Parliament.

1. These submissions address issues raised in the hearing of the proceeding, however the primary submission of the Attorney-General is that none of these are of direct assistance in resolving the constructional question.

Status, relevance and significance of Glenister v Dillon

1. Glenister does not assist in the resolution of the issue to be determined in this case. The observations made by Gillard and Menhennitt JJ that could support a broad construction of s 16 of the Ombudsman Act 1973 (Vic) (the Act) were obiter, were made in relation to a substantially different version of the Act, and have been undermined by subsequent Supreme Court authority.

[1976] VicRp 57; [1976] VR 550 (Glenister).

1. The issue for determination in Glenister was whether the Ombudsman had jurisdiction under s 13(1) of the Act to conduct investigations into complaints by two persons in custody awaiting trial. The complainants alleged a failure by the Crown Law Department to bring them to trial within a reasonable time, and in one case, an alleged failure to reply to a letter. Section 13(1) then provided that "[t]he principal function of the Ombudsman shall be to investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies".
2. Justices Gillard and Menhennitt determined this issue by construing the words "administrative action" in s 13(1). Their Honours construed those words by reference to the tripartite classification of legislative, executive and judicial government functions, and concluded that "administrative action" referred to some act or omission in the executive/administrative branch of government as opposed to the legislative and judicial branches.2
3. In construing the words "administrative action", their Honours made brief reference to s 16 to reinforce that conclusion. Justice Gillard stated that "[t]his view finds supports also in the provisions of s 16 which confers jurisdiction on the Ombudsman to investigate parliamentary complaints 'other than a matter concerning a judicial proceeding'".3 Justice Menhennitt stated:4

This conclusion is strongly supported by ... s 16 of the Act ... [Section 16] has a double significance. In the first place, it impliedly assumes that a matter of administration does not comprehend any aspect of legislative action.... . In the second place, there is expressly excluded from the matters which may be so referred a matter concerning a judicial proceeding, thereby confirming the concept that a matter of administration is a matter that relates to the executive arm of government but not the judicial arm.

1. Justice Dunn did not consider it necessary to determine the meaning of "administrative action".5 His Honour determined that a Crown Solicitor would be exempt from investigation by the Ombudsman by reason of s 13(3)(b), which provided that "nothing in this Act shall authorise the Ombudsman to investigate any administrative actions taken by ... a person acting as a legal adviser to the Crown or as Counsel for the Crown in any proceedings".
2. In construing s 13(3)(b), Dunn J also made reference to s 16, stating that:

It is clear from [s 13(a) and (aa)] and from the exclusion of "a mater concerning a judicial proceeding" from the matters of parliamentary complaints which may be referred to the Ombudsman - see s 16 - that Parliament intended that it was not appropriate for anything relating to judicial or quasi-judicial proceedings to be made the subject of investigation even if it could be said that some act came within the definition of administrative action.6

1. Justice Dunn therefore contemplated that action taken by a court may come within the definition of "administrative action", and that the purpose of s 13(3) and the carve out in s 16 was to exempt administrative action taken by a court or relating to judicial proceedings from investigation by the Ombudsman. This was in contrast to Gillard and Menhennitt JJ, who, given their definition of "administrative action", concluded that s 13(3) had been included out of an abundance of caution.7
2. The question that now arises is the status, relevance, and significance of Gillard and Menhennitt JJ's observations in relation to s 16.
3. The Attorney-General submits that these observations were obiter dicta in respect of the operation of s 16 as at 1976. Given that s 16 was not the focus of the decision, and that there was no close reading of the text of s 16, and no authorities relied on, this obiter was neither seriously considered nor well established.8 Nor has it since been relied on such that it has now become well established.
4. Whatever their status as at 1976, these observations have no current relevance where the statutory context has changed substantially in the 40 years since those observations were made. Statutory construction is a text-based activity.9 Section 16 must be construed by reference to the text, purpose and context of the Act in its current form.10 The observations simply do not relate to the Act in its current form. Judicial statements as to the construction of legislation should not be allowed to supplant or supercede the proper process of textual analysis in the task of statutory construction.11 To construe s 16 in 2016 by reference to the briefest of obiter observations about the operation of s 16 in 1976, rather than by reference to the Act as it is now drafted, would be to fail to have regard to these fundamental principles of statutory construction.

Cf Farah Constructions v Say-dee P/L (2007) 230 CLR 89, 150-151 [134].

Northern Territory of Australia v Collins [2008] HCA 49; (2008) 235 CLR 619, 623 [16].

Commissioner of Stamps v Telegraph Investment Company Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 463 (Brennan CJ, Dawson and Toohey JJ).

Ogden Industries Pty Ltd v Lucas [1970] AC 113, cited in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, 69 [74] (Sackville J), 53 [1] (Whitlam J), 75 [108] (Mansfield J).

1. The observations of Gillard and Menhennitt JJ also have no significance where the tripartite legislative/executive/judicial classification adopted by their Honours in respect of "administrative action" has been undermined in subsequent cases. _Booth v Dillon (No 3)_12 and _Niselle v Brouwer_13 have both rejected this classification in relation to "administration action" [sic] and accepted that "it is possible to have administrative acts mixed with judicial functions".14 This is consistent with High Court authorities that have held that the issue of warrants and the conduct of committals are administrative actions that are undertaken by a court.15
2. Further, the tripartite classification relied on by their Honours led their Honours to fail to give sufficient attention to the text of s 16 and thereby err in construing it. Their Honours held that the phrase "other than a mater concerning a judicial proceeding" in s 16 confirmed the legislative/executive/judicial scheme underlying the Act because it carved the judicial branch out of the jurisdiction said to be conferred on the Ombudsman by s 16. However, that phrase does not refer to any matter concerning the judicial branch, but to the more narrow class of any matter concerning a judicial proceeding. This is a narrower class that does not suggest that any action taken by the judicial branch is exempt from investigation by the Ombudsman (the better analysis is that that class is excluded to observe the sub judice rule that a matter under judicial consideration should not be the subject of public discussion elsewhere). What underlies this error is the same syllogistic reasoning that was criticised by the High Court in ICAC v Cunneen.16 Rather than construing "administrative action" by reference to the terms of the Act, their Honours assumed the meaning of "administrative action" by reference to a concept outside of the Act, and then construed the statute by reference to that a priori assumption. To now follow the obiter of Gillard and Menhennitt JJ would be to fail to adhere to current High Court authority on the process of statutory construction.

Privileges and immunities of the Victorian Parliament, or of the Houses thereof, or of individual Members thereof

1. The primary provision providing for the privileges, immunities and powers of the Houses of the Parliament of Victoria is s 19(1) of the Constitution Act 1975 (Vic). That section provides that the Houses of Parliament and the committees and members thereof shall hold, enjoy and exercise the same privileges, immunities and powers as were possessed by the House of Commons and the committees and members thereof on 21 July 1855, subject to any Act of the Parliament of Victoria.

[1977] VicRp 16; [1977] VR 143 (Booth).

[2007] VSC 147; (2007) 16 VR 296 (Nisselle).

In respect of warrants see: Love v Attorney-General (NSW) (1990) 169 CLR 307. In respect of committals see: Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415, 435-436 (Gibbs J); Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1.

[2015] HCA 14; (2015) 318 ALR 391, 400 [33].

1. The content of such privileges, immunities and powers has been described in Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament as:17

The sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of Each House individually, without which they cannot discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of the Members. Other such rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its own authority and dignity.

1. These privileges, powers and immunities have been elsewhere summarized as having two essential components:18
   1. Freedom of speech, as guaranteed by Article 9 of the Bill of Rights Act 1689; and
   2. The exercise by Parliament of control over its own affairs, known technically as 'exclusive cognisance'.
2. It is the second component - exclusive cognisance - that is relevant here.19 This principle extends, in bicameral parliaments, to each House's independence from the other House.20 As John Hatsell stated in 1818:21

Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (2004) (23rd Ed.) Edited by Sir William McKay, London, LexisNexis quoted in R Macreadie and G Gardiner, An Introduction to Parliamentary Privilege, Parliamentary Research Paper, No 2, August 2010, 9-10.

R Macreadie and G Gardiner, An Introduction to Parliamentary Privilege, Parliamentary Research Paper, No. 2, August 2010, 11.

Counsel for the President of the Legislative Council made reference to this principle in oral submissions, stating "there is no doubt that [the power of the houses to regulate or control their internal affairs] is an aspect of the privileges of parliament. It's a power that attaches to each House. It does not attach to the Parliament as an institution": Glass v President of the Legislative Council, S CI 2016 00284, Transcript, 9 May 2016, 76, lines 25-30.

R Macreadie and G Gardiner, An Introduction to Parliamentary Privilege, Parliamentary Research Paper, No. 2, August 2010, 15.

J Hatsell, Precedents of Proceedings in the House of Commons (Vol 3, 1818), 67 quoted in G J Lindell, 'Current and Former Members and Ministers (and their Ministerial Staff): Immunity from Giving Evidence to Parliamentary Inquiries Established by Houses of Parliament in which they were not Members' (2002) 17(2) Australasian Parliamentary Review 112, 116.

The leading principle, which appears to pervade all the proceedings between the two Houses of Parliament, is, that there shall subsist a perfect equality with respect to each other; and that they shall be, in every respect, totally independent one of the other. From hence it is, that neither House can claim, much less exercise, any authority over a Member of the other; but if, there is any ground of complaint against an Act of the House itself, against any individual Member, or against any of the Officers of either House, this complaint ought to be made to that House of Parliament, where the offence is charged to be committed; and the nature and mode of redress, or punishment, if punishment is necessary, must be determined upon and inflicted by them.

1. William Blackstone similarly observed in 1830:22

The whole of the law and custom of Parliament has its origins from this one maxim, that whatever matter arises concerning either House of Parliament, ought to be examined, discussed and adjudged in that House and not elsewhere.

1. This principle finds modern recognition in s 43 of the Constitution Act 1975 (Vic) which relevantly empowers the Legislative Council and Legislative Assembly to make, amend and vary Standing Rules and Orders for and with respect to the management of their own affairs.
2. This principle is also reflected in ss 19, 21 and 26 of the Protected Disclosure Act 2012 (Vic) (PD Act) which create a scheme that allows the Presiding Officer of a House of Parliament to determine whether a disclosure about a member of that House should be referred to an external body.

(1) A disclosure made under this Part that relates to a member of the Legislative Assembly (whether in the member's capacity as a member of the Parliament or as a Minister of the Crown) must be made to the Speaker of the Legislative Assembly;

(2) A disclosure under this Part that relates to a member of the Legislative Council (whether in the member's capacity as a member of the Parliament or as a Minister of the Crown) must be made to the President of the Legislative Council ... .

1. If the Speaker or the President considers that the disclosure is a protected disclosure, s 21 of the PD Act provides that the Speaker or the President may notify the disclosure to the Independent Broad-based Anti-corruption Commission (IBAC). This is in contradistinction to notifications of protected disclosures to other entities which under s 21 must be notified to IBAC.

Blackstone, Commentaries on the Laws of England, (17th ed, 1830) cited in Macreadie and Gardiner, An Introduction to Parliamentary Privilege, Parliamentary Research Paper, No. 2, August 2010, 15.

1. Under s 26 of the PD Act, IBAC must then assess whether the disclosure is a protected disclosure, and if it concludes that it is, determine that the disclosure is a protected disclosure. That determination would then allow IBAC to refer a protected disclosure to the Ombudsman under s 73 of the Independent Broad-based Anti-corruption Commission Act 2011 (IBAC Act) if IBAC considered that it was a protected disclosure that was more appropriate for the Ombudsman to investigate.
2. The exclusive cognisance principle is further reflected in Standing Orders 17.01 and 17.03 of the Legislative Council Standing Orders, and Standing Orders 187 and 189 of the Legislative Assembly Standing Orders. Standing Order 17.01 and 187 provide that the respective Houses may compel their own Members to attend and be examined, reflecting the control of each House over its own Members. Standing Orders 17.03 and 189 provide that if a House or a committee of a House wishes to examine a Member of the other House, they must send a message to the other House seeking leave to examine a Member of the other House on the matters specified in the message, reflecting the independence and equality of each House from the other.
3. The exclusive cognisance principle is a longstanding principle of parliamentary privilege that has continued importance in the Victorian Parliament today. It is well established that parliamentary privilege should not be abrogated or displaced in the absence of a clear legislative intention.23 To construe s 16 as enabling one House of Parliament to refer to the Ombudsman a matter concerning a Member of another House of Parliament would fundamentally undermine this principle in the absence of any clear legislative intention. This principle therefore favors a narrow construction of the referral power in s 16.
4. This conclusion is not affected by the fact that the Ombudsman is "an independent officer of the Parliament".24 In the absence of express words, the exclusive cognisance principle is preserved. This is confirmed by s 94E(3) that states that there are no implied functions, powers, rights, immunities or obligations that arise by reason of the Ombudsman's status as an independent officer of the Parliament. The fact of the Ombudsman being an independent officer of the Parliament does not form the basis for implying that the referral power in s 16 is any broader than the text, purpose and subject matter of the Act permit.

Duke of Newcastle v Morris (1870) LR 4 HL, 661, 671, 677, 680, cited in Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2001] QCA 218; [2002] 2 Qd R 8.

Constitution Act 1975 (Vic) s 94E.

The provisions of any statute or any standing orders relating to any committee of either House of the Victorian Parliament or to any joint committee of the Houses of the Victorian Parliament

1. There are four general types of parliamentary committees in the Parliament of Victoria: Joint Investigatory Committees, Standing Committees, Domestic/Internal Committees (Procedure and Privilege Committees, the House Committee, and the Dispute Resolution Committee) and Select Committees.

1. Joint Investigatory Committees are set up under the Parliamentary Committees Act 2003 (Vic) (the PC Act). There are two kinds of Joint Investigatory Committees: Joint House Committees and Specific Purpose Committees.25 There are currently nine joint house committees established under s 5 of the PC Act.26 The Act does not establish any Specific Purpose Committees.
2. Part 2 of the PC Act provides for the establishment, terms and functions of Joint Investigatory Committees.
3. Part 3 of the PC Act provides for the constitution and procedure of Joint House Investigatory Committees. Section 21(1) provides that a Joint Investigatory Committee must consist of not less than 5 members and not more than 10 members of whom at least one must be a member of the Legislative Assembly, and at least one must be a member of the Legislative Council. Section 23 provides that a quorum is a majority of the members appointed to the Joint Investigatory Committee.
4. Part 4 of the PC Act provides for referrals to, and reports and responses of, Joint Investigatory Committees.

1. Chapter 23 of the Standing Orders for the Legislative Council of Victoria provides for the appointment of Standing Committees, Domestic/Internal Committees (Procedure and Privilege Committees), and Select Committees.
2. Standing Order 23.01 provides for the appointment of the Standing Committee on the Economy and Infrastructure, the Standing Committee on Environment and Planning and the Standing Committee on Legal and Social Issues.

The Accountability and Oversight Committee; the Economic, Education, Jobs and Skills Committee; the Electoral Matters Committee; the Environment, Natural Resources and Regional Development Committee; the Family and Community Development Committee; the Independent Broad-based Anti-corruption Commission Committee; the Law Reform, Road and Community Safety Committee; the Public Accounts and Estimates Committee and the Scrutiny of Acts and Regulations Committee.

1. Each standing committee is comprised of a legislation committee and a references committee. Standing Order 23.03 provides that each legislation and reference committee will consist of eight Members, with four Members from the Government party nominated by the Leader of the Government in the Council, three Members from the Opposition nominated by the Leader of the Opposition in the Council and one Member from among the remaining Members in the Council nominated jointly by minority groups and independent Members. Standing Order 23.04 provides that five Members of each committee will constitute a quorum of the committee, and further that each committee may proceed to the dispatch of business notwithstanding that all Members have not been appointed and notwithstanding any vacancy.
2. Standing Order 23.08 provides for the appointment of a procedures committee to consider any matter regarding the practices and procedures of the House. Standing Order 23.08(3) provides that the committee shall consist of seven Members with four Members to be the quorum.
3. Standing Order 23.09 provides for the appointment of a Privileges Committee to consider any matter regarding the privileges of the House referred to it by the Council. Standing Order 23.09(3) provides that the Committee shall consist of seven Members with four Members to be the quorum.
4. Standing Order 23.10 provides for the appointment of Select Committees to consider matters referred by the House, with the motion for the appointment of a select committee stating the object of such a committee. Standing Order 23.11 provides that a select committee will consist of not less than five, nor, without leave of the Council, more than 10 Members. Standing 23.12 provides that the quorum of every Select Committee will be fixed at the time of appointing the committee.

Legislative Assembly parliamentary committees

1. Chapter 23 of the Standing Orders for the Legislative Assembly of Victoria provides for the appointment of Select Committees to consider any matter specified by the Assembly. Standing Order 202 provides that a select committee will normally consist of not less than five, and not more than 12, members unless otherwise ordered by the House and each party will be invited to be represented. Standing Order 203 provides that the quorum of the select committee will be fixed at the time of appointment.
2. Standing Order 209 contemplates that the Privileges Committee and Standing Orders Committee will be appointed by the select committee process.

Dispute Resolution Committee and House Committee

1. Section 65B of the Constitution Act 1975 (Vic) provides that a Dispute Resolution Committee is to be established as soon as possible after the commencement of each Parliament, and that it is to consist of 12 members of whom 7 are to be members of, and appointed by the Assembly, and 5 of whom are to be members of, and appointed by, the Council.
2. Section 38 of the PC Act provides for the creation of a joint committee of both Houses called the House Committee that has various administrative functions as conferred by s 40 of that Act.

Significance of these provisions in the present case

1. It is evident from the preceding discussion that parliamentary committees may be composed of relatively few persons, with a quorum of 5 persons or less, and may be formed entirely by Members from one House. The significance of this for the construction of s 16 is as follows.
2. It is beyond doubt that neither a committee, nor a single House of Parliament, has the power to legislate.27
3. A construction of s 16 that conferred power on a committee to refer "any matter" to the Ombudsman for investigation and report, unconstrained by the subject-matter, scope and purpose of the Act would, however, effectively confer legislative power on the referring committee. As Latham CJ stated in Commonwealth v Grundseit:28

The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.

1. The President's construction would not provide a rule of conduct or a declaration as to power, right or duty. Rather it would allow a committee, potentially composed of very few people from one House alone, to determine the content of the law on any particular occasion when it chose to make a referral. It is therefore questionable whether the President's construction of s 16 would even constitute a law.
2. In order to constitute a law, the content of the referral power in s 16 must be ascertained by reference to the text, purpose and context of the Act, not simply the text of s 16. Once this is accepted, there is no rational basis to draw selectively from that text, purpose and context in order to preserve the pre-supposed breadth of the power in s 16. The referral power must reflect the functions and jurisdiction of the Ombudsman that are set out in the broader context of the Act. The President's submissions to the contrary should be rejected.

Stockdale v Hansard (1829) 9 AD. & E 190.

[1943] HCA 47; (1943) 67 CLR 58, 82 (Latham CJ).

Post-hearing written submissions: the President

204 The President's post-hearing written submission in reply, which was filed on 7 June 2016, should also be set out in full (except paragraph 1, which is purely formal):

1. The Full Court's judgment in Glenister v Dillon (Glenister)1 is consistent with the President's construction of s 16 of the Ombudsman Act 1973 (Vic) (the Act).
2. The question before the Full Court in Glenister was whether the alleged failure by the Crown Law Department to bring to trial within a reasonable time two persons held on remand was "administrative action", thus enlivening the Ombudsman's principal function under s 13(1) of the Act. (At the time of the Full Court's judgment, the Act stood substantially in the form in which it was first enacted - with the addition of paragraph (aa) of s 13(3).2)
3. Separate reasons were given by Gillard, Menhennitt and Dunn JJ. Justices Gillard and Menhennitt considered that the action in question fell outside the scope of "administrative action";3 although each of their Honours also found that the action, if it had been administrative action, would have been exempted from the Ombudsman's jurisdiction by s 13(3)(b) - as administrative action taken by a person acting as legal advisor to the Crown.4 Justice Dunn considered that, if the action was "administrative action" (a question his Honour found unnecessary to resolve), it was exempted from the Ombudsman's jurisdiction by s 13(3)(b).5 Section 16 of the Ombudsman Act was addressed briefly by each member of the Court.
4. Justice Gillard interpreted the phrase "administrative action" as conduct arising in the course of administration as distinct from the exercise of powers that were legislative or judicial in character.6 His Honour referred to s 16 as support for that distinction, because it conferred jurisdiction on the Ombudsman to investigate parliamentary complaints "other than a matter concerning a judicial proceeding".7

[1976] VicRp 57; [1976] VR 550.

Inserted by the Ombudsman (Exemption) Act 1974, s 2(a). The amended s 13(3) is reproduced in [1976] VicRp 57; [1976] VR 550 at 554/30-40.

[1976] VicRp 57; [1976] VR 550 at 559/25 (Gillard J), 564/30 (Menhennitt J).

[1976] VicRp 57; [1976] VR 550 at 560/3 (Gillard J), 566/10 (Menhennitt J).

[1976] VicRp 57; [1976] VR 550 at 567/10.

[1976] VicRp 57; [1976] VR 550 at 556/20.

[1976] VicRp 57; [1976] VR 550 at 558/45.

1. Justice Menhennitt adopted Gillard J's reasoning and found that the term "administrative action" referred to conduct that was neither legislative nor judicial - a "conclusion ... strongly supported by the provisions of s 16 of the Act", a provision that "has a double significance":8

In the first place, it impliedly assumes that a matter of administration does not comprehend any aspect of legislative action and therefore it expressly requires the Ombudsman to investigate and report upon any matter referred to him by either arm of the legislature or committees thereof. In the second place, there is expressly excluded from the matters which may be so referred a matter concerning a judicial proceeding, thereby confirming the concept that a matter of administration is a matter that relates to the executive arm of government but not the judicial arm.

His Honour's observations support a wide reading for s 16, unconstrained by any limitations inherent in s 13, only subject to the express exclusion of "a matter concerning a judicial proceeding".

1. Justice Dunn referred in passing to the exclusion in s 16 of "a matter concerning a judicial proceeding" as reinforcing Parliament's intention that it was not appropriate for the Ombudsman to investigate "anything relating to judicial and quasi-judicial proceedings".9 Although the point is not relevant to the issues presented in the current proceeding, his Honour's reasons do not support the Attorney-General's submission that "the carve out in s 16" exempted "administrative action taken by a court ... from investigation by the Ombudsman".10
2. The Full Court's observations on s 16 were no doubt obiter. However, Menhennitt J's observations are important because his Honour accepted that the scope of the referral power in s 16 is unconstrained other than by the express exception of a matter concerning a judicial proceeding. That is consistent with the position advanced by the President in his principal submissions - namely, that any limitation on the power of referral can only arise from express exceptions found in the Act.
3. For the reasons submitted by the President previously, the construction of the Act shortly after its enactment supports the position that s 16 was and remains an independent head of investigative power. In response to paragraph 12 of the Attorney-General's further submissions, the President relies on his principal submissions, to the effect that s 16 was enacted as, and remains, an independent head of investigative power.

[1976] VicRp 57; [1976] VR 550 at 564/5.

[1976] VicRp 57; [1976] VR 550 at 564/25.

Attorney-General's further submissions, paragraph 9.

1. With respect, the Attorney-General is mistaken when he submits11 that the distinction drawn by Gillard and Menhennitt JJ between administrative, executive and legislative actions "has been undermined in subsequent cases".

10.1 In Booth v Dillon (No 3),12 Nelson J expressly endorsed the views expressed by Gillard and Menhennitt JJ as to the "broad distinction to be drawn ... between acts which may properly be described as falling within the performance of the executive function of government and those which fall within the performance of the legislative and judicial functions of government".

10.2 In Niselle v Brouwer,13 R Gillard J said that he "accept[ed] that the views expressed by [O] Gillard and Menhennitt JJ are of importance and ... have stood the test of time. I accept what their Honours said as to the general definition of 'administrative action', namely, as being that which is not legislative or judicial."

1. Although both Booth v Dillon (No 3) and Niselle v Brouwer accept that it may be possible to have administrative acts mixed with judicial functions and that the appropriate characterisation of any action will depend on the circumstances, those decisions do not "reject" the approach in Glenister. (Two other authorities have cited Glenister as support for the tripartite division of functions: Anti-Discrimination Commissioner v Acting Ombudsman;14 and Legal Aid Commission of Western Australia v Edwards.15)
2. Paragraph 14 of the Attorney-General's further submissions makes too much of what is claimed to be a confusion, on the part of Gillard and Menhennitt JJ, between "a matter concerning the judicial branch" and "a matter concerning a judicial proceeding". Their Honours did not fall into that confusion:

12.1 Gillard J referred to s 16 as supporting, not itself expressing, the proposition that the exercise of the judicial function did not relate to any matter of administration.16

12.2 Menhennitt J described the express exclusion in s 16(1) of a matter concerning a judicial proceeding as "confirming" (not establishing) that a matter of administration was not a matter that relates to the judicial arm of government,17 a distinction drawn from the general structure of the Act, not from s 16.

In paragraph 13 of the Attorney-General's further submissions.

[1977] VicRp 16; [1977] VR 143 at 144.

[2007] VSC 147; (2007) 16 VR 296 at 309 [73].

[2003] TASSC 34 at [34] (Slicer, Evans and Blow JJ).

[1982] FCA 103; (1982) 42 ALR 154 at 158 (Toohey J).

[1976] VicRp 57; [1976] VR 550 at 558/45.

[1976] VicRp 57; [1976] VR 550 at 564/20.

1. Section 19(1) of the Constitution Act 1975 (Vic) (the Constitution Act) provides that the Council and Legislative Assembly, and their committees and members, shall hold, enjoy and exercise the privileges, immunities and powers that were held, enjoyed and exercised by the House of Commons of Great Britain and Ireland as at 21 July 1855, so far as they are not inconsistent with any Act of the Parliament of Victoria.
2. Two key elements of parliamentary privilege are, as noted in paragraph 17 of the Attorney-General's further submissions:

14.1 the freedom of speech guaranteed by Article 9 of the Bill of Rights 1689; and

14.2 the control by Parliament of its own affairs, free from interference by the courts, referred to as "exclusive cognisance".

Freedom of speech

1. In the context of one of the issues ventilated in the current proceeding, the privilege of freedom of speech preserves the right of each member of the Council or Assembly to bring into the proceedings of the relevant House a matter that might otherwise qualify as a protected disclosure or that has been or is currently the subject of a protected disclosure under the Protected Disclosure Act 2012 (Vic) (the Protected Disclosure Act).

15.1 Nothing in the Protected Disclosure Act purports to limit that right - bearing in mind that parliamentary privilege is not to be regarded as abrogated in the absence of express words or unmistakable and unambiguous language.18

15.2 It also follows that the Council's power to refer a matter to the Ombudsman pursuant to s 16(1) of the Act, being a matter over which the Council has exclusive cognisance (see paragraphs 18-19 below), is not diminished by the Protected Disclosure Act.

Exclusive cognisance

1. The principle of exclusive cognisance recognises that Parliament is independent of the other institutions of government, and that each House is independent of the other. According to a recent edition of Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament:19

Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2001] QCA 218; [2002] 2 Qd R 8 at 23/20 [26] (McPherson JA), citing Duke of Newcastle v Morris (1870) LR 4 HL 661.

24th edn (2011), p 227. See also Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 3rd edn (1855), pp 60 and 149.

Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle - or depart from - their own codes of procedure.

1. The principle of exclusive cognisance is reflected in s 43(1) of the Constitution Act (which authorises each House to make standing rules and orders on such matters as communications between the two Houses and the conduct of all business and proceedings in the Houses, "severally and collectively") and various Standing Orders of the Assembly and the Council. For example:

17.1 Legislative Council Standing Order 17.01 and Legislative Assembly Standing Order 187 provide that a member of the respective House may be compelled to attend and be examined by the House or its committee.

17.2 Legislative Council Standing Order 17.03 and Legislative Assembly Standing Order 189 provide that, if the respective House or its committee desires the attendance of a member or officer of the other House as a witness, a message is to be sent to the other House requesting that the other House give leave for the member or officer to attend to give evidence.

1. Section 16 of the Act can be seen to reflect the principle of exclusive cognisance because it allows each House (and their respective committees) to choose whether to refer a matter to the Ombudsman. In the same way, as the Attorney-General notes,20 the Protected Disclosure Act reflects that principle by giving the President of the Council and the Speaker of the Assembly a discretion as to whether a disclosure about a member of the relevant House should be referred to an external body.
2. Section 16 allows one of the Houses to refer to the Ombudsman "any matter", which includes (if the House so chooses) a matter relating to the internal affairs of that House. Consistent with paragraph 26 of the Attorney-General's further submissions, reading s 16 of the Act as allowing the Council to refer to the Ombudsman a matter concerning a member of the Council reinforces, and does not undermine, the principle of exclusive cognisance. It would breach that principle for one House to refer to the Ombudsman a matter relating to the internal affairs of the other House.

19.1 However, it would be a matter for the other House, and not the Supreme Court, to assert the principle of exclusive cognisance with the referring House and with the Ombudsman.

19.2 If the other House failed to assert that principle, any member of the other House affected by such a referral could raise the breach of privilege with the referring House and with the Ombudsman - because neither House can waive privilege in a manner that would diminish the rights and immunities of one of its members.

Attorney-General's further submissions, paragraphs 21-23.

No possible breach of parliamentary privilege

1. The Council's resolution of 25 November 201521 should not be understood as breaching the principle of exclusive cognisance: the resolution does not refer the conduct of members of the Assembly; and it does not assert or imply that the privileges and immunities of the Assembly are in any way diminished. (As noted in paragraphs 19.1 and 19.2 above, if the resolution were to be read as referring the conduct of members of the Assembly, it would be a matter for the Assembly, or the members affected, to assert its privileges and immunities with the Council and the Assembly: the enforcement of the principle of exclusive cognisance is not a matter for the Supreme Court.)
2. Further, the resolution of 25 November 2015 does not refer any matter that is related to proceedings in the Council or in the Assembly (which would be directly protected by the privilege of freedom of speech22), such as presenting a petition, voting, participating in debate or asking a question with or without notice. The matter of members' staff budget entitlements do not relate to proceedings in the Council or in the Assembly and are not protected by parliamentary privilege.
3. In any event, the matter of those staff budget entitlements has been selected by the Council as a matter to be referred to the Ombudsman for investigation. It is well established that the courts show deference to the Houses of Parliament on matters of privilege.23 That has three consequences in the current proceeding.

22.1 First, the Court should only decide an issue of privilege when compelled to do so in order to vindicate a legal right.24 Because the subject matter of the referral to the Ombudsman is not a privileged matter, any question of the interaction between s 16 of the Act and the parliamentary privilege can only be considered in the abstract. That interaction does not give rise to any question of a legal right, which the Court is compelled to decide.

22.2 Secondly, if the Council's referral to the Ombudsman could be read as infringing on the Assembly's privileges and immunities, the assertion of those privileges and immunities is a matter for the Assembly, or any member affected by the referral, and not the Supreme Court.

Exhibit BNA-1 to the affidavit of the Hon Bruce Atkinson, affirmed 1 March 2016.

Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament 24th edn (2011), pp 235 - 236; Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 3rd edn (1855), p 105. See also, in the context of the Parliamentary Privileges Act 1987 (Cth), the discussion of the limited nature of the activities that come within "proceedings in Parliament" in Slipper v Magistrates Court of the ACT [2014] ACTSC 85 at [48] - [50] (Burns J).

Barber v State of Victoria [2012] VSC 554 at [29] (Emerton J).

Egan v Chadwick [1999] NSWCA 176; (1999) 46 NSWLR 563 at 579 [90] (Spigelman CJ)

22.3 Thirdly, where a question of parliamentary privilege arises before a court and Parliament has chosen not to adjudicate on that privilege, the Court should decline to so adjudicate.25 Consistently with the President's oral submissions on 10 May 2016,26 the Court does not need to and ought not decide any question of the interaction between s 16 of the Act and parliamentary privilege.

C. PARLIAMENTARY COMMITTEES

1. Five categories of parliamentary committees operate in the Victorian Parliament.

23.1 Joint investigatory committees are appointed in each Parliament to investigate a number of different issues in particular subject areas. They consist of members of both Houses.

23.2 Other joint committees are appointed in each Parliament to manage particular matters of common interest, or may be appointed as required.

23.3 The Dispute Resolution Committee is appointed by both Houses in each Parliament pursuant to s 65B of the Constitution Act. Its function is to attempt to resolve disputes between the Houses over proposed legislation.

23.4 Standing committees are appointed for the length of a parliamentary term to investigate a number of different issues in particular subject areas. They consist of members of one House. The relevant House's Standing Orders prescribe the committees' membership and quorum.

23.5 Select committees investigate a particular issue and are usually dissolved when the issue is reported on. Select committees may be constituted by members of one House, or both Houses in the case of a joint select committee.

1. Despite differences in the mechanics of establishment, membership and functions, all committees (other than the Dispute Resolution Committee) have the same powers to call for submissions, order the attendance of witnesses, and order the production of documents: Legislative Council Standing Order 23.19; Assembly Council Standing Order 214; Joint Standing Order 15(9) and the Committees Act, s 4(1) and (2).

Barber v State of Victoria [2012] VSC 554 [38] (Emerton J).

Transcript, 10 May 2016, p 114, lines 14-22.

Committee membership and quorum requirements

Joint investigatory committees

1. Joint investigatory committees are established under the Parliamentary Committees Act 2003 (Vic) (the Committees Act). There are two types of joint investigatory committees: joint house committees: s 5; and special purpose committees: s 18.
2. The membership requirement for joint investigatory committees under the Committees Act is not less than five and not more than ten members, with at least one member from each House: s 21; and a quorum consisting of a majority of the appointed members: s 23.

House Committee and Joint Committees (other than joint investigatory committees)

1. Section 38 of the Committees Act establishes a joint committee of both Houses to be called the House Committee. The House Committee consists of the President and the Speaker, five members of the Council and six members of the Assembly: s 41. Its quorum is seven, and must not consist exclusively of members of the Council or the Assembly: s 42(3) and (4). The functions of the House Committee are the management of the refreshment room and the Parliament gardens, maintenance, renewal and extension of the Parliament buildings and to advise the Speaker and, if appropriate, the President on the management of Parliamentary services: s 40.
2. Further joint committees may be established pursuant to Joint Standing Order 15 when required. They require a minimum membership of four members, with two members from each House, and a quorum of a majority of members which must not consist exclusively of members of either House. Such committees are rarely established. The most recent was a Federal State Relations Committee formed in 1996.

1. Pursuant to s 65B of the Constitution Act, a Dispute Resolution Committee is to be established as soon as possible after the commencement of each Parliament. That committee is to consist of 12 members, of whom seven are to be members of and appointed by the Assembly and five are to be members of and appointed by the Council. No quorum is prescribed by the Constitution Act, but the Dispute Resolution Committee is authorised, by s 65B(9)(b), to determine the rules to be adopted for the conduct of meetings.
2. The function of the Dispute Resolution Committee, prescribed by s 65C of the Constitution Act, is to seek to reach a "Dispute Resolution" on a "Disputed Bill", defined in s 65A as a Bill passed by the Assembly and not passed by the Council within two months in a form accepted by the Assembly. A Dispute Resolution is also defined in s 65A as a resolution recommending to the Assembly the passage of a Disputed Bill, with or without specified amendments. If a Dispute Resolution cannot be reached, the Disputed Bill may provide the basis for an early dissolution of the Legislative Assembly under s 65E of the Constitution Act.

1. Legislative Council standing committees are provided for in Chapter 23 of the Legislative Council Standing Orders.
2. The membership and quorum requirements for standing committees in the Council are detailed in Standing Orders 23.03 and 23.04, as amended by Sessional Order 7 in the 58th Parliament (adopted by the Council on 12 February 2015 and amended on 17 March 2015 and 15 and 16 April 2015). There are eight members on a committee, consisting of three Government members, three Opposition members, one Greens member and one member from the remaining parties, with a quorum of five members.
3. The Council has established three broad, Government-portfolio-based standing committees, which may inquire into matters, including but not restricted to Bills referred by the House or by each committee's own motion.
4. Two other standing committees of the Council, the Procedure Committee and the Privileges Committee, are established by Standing Orders 23.08 and 23.09, as amended by Sessional Orders 9 and 10 in the 58th Parliament (adopted by the Council on 12 February 2015 and amended on 17 March 2015 and 15 and 16 April 2015). The Standing Orders prescribe a membership of eight and a quorum of five for each committee.

1. Legislative Council select committees are also provided for in Chapter 23 of the Legislative Council Standing Orders.
2. Legislative Council select committees' membership requirements are detailed in Legislative Council Standing Orders 23.10-23.14 and allow for a membership of not less than five, and without leave of the Council, not more than ten members. The quorum requirements are established by the House when each committee is formed.
3. The Council has established one select committee in the current Parliament, which inquired into and reported on the proposed Port of Melbourne lease. It consisted of eight members (three Government members, three Opposition members, one Greens member and a member drawn from minority groups and independent members. Its quorum was one-half of the select committee's eight members.

1. Legislative Assembly select committees are provided for in Chapter 24 of the Legislative Assembly Standing Orders.
2. Legislative Assembly select committees' membership requirements are detailed in Assembly Standing Orders 201 and 202 and allow for a membership not less than five and not more than twelve members, unless otherwise ordered by the House.
3. The committees currently established pursuant to these Standing Orders are the Privileges Committee and the Standing Orders Committee.
4. Pursuant to Assembly Standing Order 203, the quorum requirements are established by the House when the committee is formed.

Significance to the construction of s 16 of the Ombudsman Act

1. The procedures and requirements detailed above confirm that s 16 of the Act is an independent investigative power. As is plain from the above, Parliamentary committees are subject to a number of checks and balances. They are constrained by the functions conferred on them, and generally have minimum requirements for the number of their members and quorum. Because they are committees of one or both Houses, the committees are accountable to, and subject to the control of, the relevant House or Houses.
2. Paragraph 45 of the Attorney-General's further submissions advances the argument that permitting a committee to refer "any matter" to the Ombudsman would effectively confer legislative power on the referring committee.

43.1 With all respect to the Attorney-General, reading s 16(1) as unconstrained by the implications that the Attorney-General seeks to draw from the Act would not give any referring committee the power to determine the content of the law.

43.2 Reading s 16(1) as unconstrained by those implications would only permit the referring committee, by exercising the power of referral, to select the particular matter for referral for investigation and report by the Ombudsman. That reading gives the referring committee no more than a power to apply the law, no doubt expressed in broad terms, to a particular case.

205 Although the submissions of the parties ranged far and wide, the fundamental question with which I must deal is the question set out in the originating motion, namely 'whether or not [the Ombudsman] has jurisdiction to carry out an investigation pursuant to the referral made by the Legislative Council of Victoria on 25 November 2015'.

206 In my view, I am required to rule on the arguments advanced by the parties only insofar as those arguments truly bear on the answer to the question raised by the originating motion, ie only insofar as those arguments may show that the particular subject matter of the referral was or was not capable of being validly referred under s 16 of the Act by the Legislative Council to the Ombudsman for investigation and report.

207 I do not proceed on the basis that any party begins with a formal onus of persuasion. Further, in light of Cunneen,[202] I accept, of course, that the Court must not start by assuming that the words of s 16 are used in their broadest possible sense (and only then go on to consider whether or not that sense is excluded by contextual indications). Likewise, I acknowledge that '[e]xpressions of indefinite connotation are especially subject to context'.[203] On the other hand, statements contained in judgments must themselves be read in context. The statutory words or concepts in issue in Cunneen were 'corruption' and 'adversely affect'. By contrast, the statutory expression centrally in issue in the present case is 'any matter'. Given that the fundamental question before the Court is whether the particular referral was in order, it is not inappropriate to consider at the outset what might be the ordinary meaning of the phrase 'any matter' when used in comparable contexts, as distinct from assuming that the phrase is used in its broadest possible sense. In my view, some guidance as to the ordinary meaning of the phrase 'any matter' (in comparable contexts) is available from a decision of the High Court in The Queen v Thomas; ex parte Brodsky.[204]

208 In Brodsky, the Court was hearing a challenge to the jurisdiction of a Medical Services Committee of Inquiry established under the National Health Act 1953-1962 (Cth). The prosecutor was a medical practitioner with whom the Commonwealth had entered into an agreement for the provision of medical services to pensioners pursuant to that Act. The Committee had authority under s 111 of the Act to inquire into and report to the Minister or the Director-General of Health on 'any matter' referred to the Committee by the Minister or the Director-General in respect of or arising out of the services or conduct of medical practitioners in connection with the provision of medical services under the Act. Where 'a matter' referred to a Committee concerned the conduct of a medical practitioner, the chairman of the Committee was required by s 125(1) of the Act to cause notice in writing of the matter so referred, and of the time and place at which the Committee intended to hold an inquiry into the matter, to be given to that medical practitioner at least ten days before the date of the inquiry. The prosecutor contended that an inquiry relating to him upon which the Committee proposed to embark was beyond its powers for the reason that the subject to be inquired into was not a 'matter' in the sense in which the word was used in ss 111 and 125 of the Act, and therefore could not be validly referred to the Committee or inquired into by it. The prosecutor invited the Court to give the word the meaning which it had in ss 75 to 78 of the Commonwealth Constitution, under which the test of a 'matter' is a claim of right, so that 'matter' means a subject-matter for determination in a legal proceeding. The Court, consisting of Kitto, Menzies and Windeyer JJ, rejected that submission. Their Honours said:[205]

We can see no ground in the language, the context or the subject-matter of [ss 111 and 125 of the National Health Act 1953-1962 (Cth)] for giving to the word as there used any precision of meaning at all. Indeed it seems chosen for the sake of that vagueness which reserves all definition to be the function of super-added descriptive words. It is often used in this manner as merely equivalent to 'things' or 'something', especially, as the Oxford English Dictionary observes, with qualifying words, 'things or something of a specified kind, involving or related to a specified thing'. Accordingly, in our opinion, the expression 'any matter' in ss. 111 and 125, has the width of meaning it has, for example, in s. 1A of the Royal Commissions Act 1902-1933 (Cth), where it is used as a comprehensive term to refer to any subject of inquiry (the expression used by the Privy Council in Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd[206] that is to say, any subject matter that may be chosen for inquiry (see the language of Fullagar J. in Lockwood v. The Commonwealth[207]).

209 I acknowledge immediately that it was not suggested in Brodsky that there was any statutory regime equivalent to what the Attorney-General has described as the 'very carefully calibrated' integrity regime which, he says, emerges from the various statutory provisions on which he relied. Further, I accept the submission of the Attorney-General that, for the purposes of interpretation of the relevant provisions, primary attention must be given to the current state of the legislation, as incorporating all amendments.

210 Nevertheless, at first sight, at least, the expression 'any matter' in s 16(1) of the Ombudsman Act 1973 appears to be used in the same sense in which it was held to have been used in the legislation under consideration in Brodsky, ie in the sense of 'any subject matter that may be chosen for inquiry'. It is true that that is a very broad concept. However, it is difficult to think of any more narrow meaning which the expression 'any matter' might ordinarily bear in the context of a statute providing for one body to refer an unspecified thing to another body for investigation. Prima facie, what was referred to the Ombudsman in the present case was a 'matter' in this sense. Accordingly, in practical terms, I consider that it falls to the Attorney-General to identify reasons why the particular subject matter purportedly referred in the present case was outside the scope of s 16(1). Consistently with this, by the consent of the parties, the Attorney-General went first with his submissions at every stage of this case. Further, in my opinion, it is necessary to concentrate on the question whether the particular subject matter that was described in the referral of 25 November 2015 was or was not within the scope of s 16, and not to become distracted by an endeavour to identify limitations on the scope of s 16 that might stand in the way of a referral different from the referral in question.

211 As indicated earlier in this judgment, I am satisfied that the Legislative Council had power to make the referral of 25 November 2015 and that the Ombudsman has jurisdiction to investigate the matter referred. The arguments to the contrary relied on by the Attorney-General are unpersuasive.

212 The Attorney-General's fundamental submission originally was that '[t]he subject matter of a valid referral must be limited by the functions and jurisdiction of the Ombudsman found in Part III of the Act'.[208] However, the Attorney-General implicitly retreated from that position by degrees over the course of the debate. He had little choice. As the President submitted, even though Part III of the Act is headed 'Functions and Jurisdiction of the Ombudsman', s 13AA(1)(d) of the Act, which appears within Part III itself, expressly recognises that functions of the Ombudsman additional to those specified in Part III might be found outside that Part, and even in other Acts. Likewise, s 94E(2) of the Constitution Act 1975 provides that the 'functions, powers, rights, immunities and obligations of the Ombudsman are as specified in this section, the Ombudsman Act 1973 and other laws of the State'.

213 Those provisions have a double significance for present purposes. First, they show that, even if, for the time being, there were no statutory provisions outside Part III of the Act which actually conferred additional functions on the Ombudsman, the mere fact that the Act itself recognises the possibility of such provisions is inconsistent with any implicit Parliamentary intention to restrict the operation of any other provision in the Act (such as s 16) by reference to functions specified wholly within Part III. Secondly, the two provisions mentioned make it easier to characterise s 16 as a section which does actually confer an additional, separate function on the Ombudsman.

214 Despite these difficulties, the Attorney-General (twice) declined to submit that 'any matter' in s 16 meant, simply, 'any matter otherwise within the jurisdiction of the Ombudsman'.[209] No doubt he was concerned, justifiably, that such a submission would be difficult to maintain having regard to the legislative history detailed above, especially in relation to comparisons with the New Zealand legislation. He was also no doubt concerned - again, with justification - that such a submission would readily be characterised as a submission that restrictive words, which were not contained in s 16, should be read into it, being a submission of a kind which is usually difficult to make good.[210] Rather, echoing language he had earlier used to describe the 'organising principle' of the Act, the Attorney-General submitted that the scope of s 16 was (implicitly) confined to any matter 'involving administrative action taken by or in an authority'.[211] Completing his implicit retreat from his original position (that the scope of s 16 was to be measured by the functions and jurisdiction found in Part III), the Attorney-General submitted[212] that, despite the terms of s 13AAA (which is, of course, located within Part III), there was no room for a referral under s 16 of a matter relating to 'conduct' by or in a 'protected disclosure entity', being conduct that could have been, but had not been, made the subject of a 'protected disclosure complaint'. Any such matter could only come to the Ombudsman through IBAC and pursuant to an actual protected disclosure complaint, he submitted. At other stages, the Attorney-General's submissions tended to focus on the legislative provisions relating to exempt persons and bodies, improper and corrupt conduct and protected disclosure complaints, contending that those provisions had the effect that the operation of s 16 was limited in various ways. Ultimately, the Attorney-General concentrated on the particular situation of members of Parliament, contending, in effect, that members of Parliament, at least, were beyond reach under s 16.

215 However, since the Attorney-General did not expressly abandon any of his arguments, and because, in any event, statutory construction is a matter for the court, which, subject to considerations of procedural fairness, is not confined to the constructions, or to the arguments as to construction, advanced by the parties to a particular proceeding,[213] I will address each of the arguments that was advanced by the Attorney-General.

216 Already I have said enough to indicate why, in my opinion, s 16 cannot be said to be confined by reference to the functions specified in Part III. Section 13AA(1)(d) of the Act represents a complete answer to that suggestion. I accept the President's arguments in that respect; and, in my view, s 94E(2) of the Constitution Act 1975 has a parallel effect. Then there are the additional complications and uncertainties, adverted to above, which would be involved in determining whether or not the Ombudsman should be regarded as having special 'underlying' jurisdiction (able to be resorted to under s 16) in relation to a matter that could be, but has not been, made the subject of a 'protected disclosure complaint' of a kind referred to in s 13AAA. Similar complications and uncertainties would arise in relation to paragraphs (a), (b) and (c) of s 13AA(1).

217 Even though the Attorney-General shrank from submitting that 'any matter' in s 16 means 'any matter otherwise within the jurisdiction of the Ombudsman', I should, for completeness, indicate that I would not have accepted such a submission. In my view, to construe s 16 in that way would, in truth, involve reading in words of limitation. Moreover, the construction would involve an insertion that is 'too big, or too much at variance with the language in fact used by the legislature'.[214] In addition, complications and uncertainties of the kind referred to in the previous paragraph would only be multiplied. There are other indications in the Act that s 16 should not be read down in such a way. Those indications apply equally to the next alternative approach taken by the Attorney-General. So I will deal with them in that context in a moment. Finally, in this regard, I would accept that the legislative history, and especially the comparison with New Zealand, shows that a deliberate choice was made not to include in s 16 words such as 'any matter otherwise within the jurisdiction of the Ombudsman'. This history supports the view which I would, in any event, have reached by reference to the text, context and purpose of the relevant legislative provisions.

218 It follows that I do not accept the Attorney-General's submission that, for the purposes of s 16, a House or committee of the Parliament can only properly 'consider' that a matter should be investigated by the Ombudsman where the matter is otherwise within the jurisdiction of the Ombudsman.

219 I turn now to the Attorney-General's reliance on the so-called 'organising principle' of the Act, namely 'administrative action taken by or in an authority'; and to his submission that s 16 should be understood to authorise the referral of, only, a matter 'involving administrative action taken by or in an authority'.

220 Of course, this construction would involve an even greater restriction on the scope of s 16 than would the construction originally advanced by the Attorney-General. If the construction originally advanced would involve an insertion that is 'too big, or too much at variance with the language used by the legislature',[215] then the same or more could surely be said of this alternative.

221 On the other hand, it is true that the concept of 'administrative action taken by or in an authority' pervades much of the Act. And, turning to the language of s 16, it is true also, as the Attorney-General submits, that the word 'matter' is protean. It may mean, or connote, many different things, depending on the context. To that extent, I accept that the observations made and the approach taken in Cunneen[216] are applicable here. However, in Cunneen, there was a choice to be made between only two, clearly identified, competing constructions. The history of the arguments in the present case shows that the same cannot be said here.

222 Even if that be wrong, it seems to me that there are insufficient indications in the Act that s 16 is to be confined in its operation to matters involving administrative action taken by or in an authority. Moreover, as I will explain shortly, the Act contains compelling indications to the contrary.

223 As to the Attorney-General's submissions based on ss 17, 19-19C, 21 and 27, I would merely indicate that I accept entirely the President's submissions in response thereto.

224 It would have been a very simple thing for the Parliament expressly to have confined s 16 in the way now suggested. A corresponding course had been taken in many other comparable jurisdictions over some 40 years. The very words required were immediately at hand, in other provisions of the Act itself. The Windsor Hotel matter had exposed the point starkly in 2010/2011. But, even after that, and despite making other extensive amendments to the Act in 2012/2013, Parliament did not insert the words. Indeed, it made no substantive change to the provisions of s 16 at all.

225 Even more telling, in my view, is what Parliament did do in 2012/2013. Among other things, Parliament substantially altered Part IV of the Act. The heading of the Part remained 'Investigations'. However, as a result of the 2012/2013 amendments, Part IV now contains numerous provisions that are really of a jurisdictional nature. Indeed, so extensive were the additions of that kind that it might now be said, with some justification, that the essential jurisdictional provisions of the Act are to be found in Part IV to a greater extent than in Part III. Reading the two parts together, Part III now has, in a way, the appearance of an introduction to the Ombudsman's functions and jurisdiction, whereas Part IV now contains many provisions which are directly operative in relation to the Ombudsman's jurisdiction and powers. (Incidentally, this change is yet another reason why the Attorney-General's original constructional submission cannot be accepted.)

226 In any event, critically, whereas the phrase 'administrative taken by or in an authority' was introduced into several comparable provisions in Part IV in 2012/2013, it was not introduced into s 16, even though s 16 is now, as a result of the same amendments, located right in the middle of the largely new Part IV.

227 As a first example, s 14(1) now provides that certain specified persons may make a complaint to the Ombudsman 'about an administrative action taken by or in an authority'. Those words had not appeared in the corresponding place in s 14 prior to the 2012/2013 amendments. The jurisdictional nature of the new provisions of Division 1 of Part IV relating to 'complaints' is highlighted by s 15B, which provides that, subject to ss 15 and 15A, the Ombudsman 'may conduct an investigation under this Act on a complaint'.

228 I turn to own motion investigations. The 2012/2013 amendments introduced a new Division 2A to regulate them. With the subsequent adjustment for gender neutral language, s 16A(1) now provides that, subject to s 13AB and s 16A itself, the Ombudsman may conduct an investigation on the Ombudsman's own motion into 'any administrative action taken by or in an authority'. The expression 'administrative action' is repeated in subsections (2) and (3) of s 16A. The longer expression ('administrative action taken by or in an authority') appears in subsections (5) and (6) of s 16A. Again, s 16A (and especially s 16A(1)) reads as a jurisdictional provision.

229 Passing to the next component of Part IV of the Act, I note that the insertion of Division 2B ('Referred complaints and matters') introduced two entirely new concepts, namely a 'referred complaint' and a 'referred matter'. The provisions of Division 2B are set out in full above. The combined effect of s 16B(1) and s 16C is that the Ombudsman may only deal with a referred complaint if it could be the subject of a complaint under s 14. That, in turn, means that it must be a complaint about 'an administrative action taken by or in an authority'. Indeed, lest there otherwise be any doubt, s 16B(1)(b) actually uses the expression 'administrative action taken by or in an authority' as part of the definition of one of the specified kinds of 'referred complaint'.

230 Likewise, the combined effect of s 16B(2) and s 16D is that the Ombudsman may only deal with a referred matter (as defined) if the matter could be made the subject of an own motion investigation. That, in turn, means that the subject matter must be 'administrative action taken by or in an authority'.[217]

231 To my mind, it is highly significant that s 16B(2)(b) expressly excludes 'a matter referred to the Ombudsman under section 16' from the definition of 'referred matter'. One consequence of that express exclusion is that s 16D(1), which provides that the Ombudsman may deal with a referred matter if the matter could be made the subject of an own motion investigation (ie, if the matter amounted to or involved 'administrative action taken by or in an authority'), is caused to have no application to a matter referred under s 16. Hence, as I read these provisions, Parliament has specifically legislated in a fashion that is directly contrary to the proposition advanced by the Attorney-General with which I am presently dealing.

232 If any further support be needed for the view that the scope of s 16 is not limited to 'administrative action taken by or in an authority', it is available from several additional sources.

233 Firstly, the terms of s 16 appear to be deliberately wide. They commence: 'At any time'. They speak not of 'a matter' but of 'any matter'. As indicated above, I consider that useful guidance as to the way in which the words 'any matter' are used in s 16(1) is available from Brodsky.

234 Further, s 16 deals explicitly with the question of exceptions. In itself, it provides for one, and only one, exception. As the President submitted, how would the Court be justified in writing into s 16(1) another exception, much less a raft of exceptions?

235 It is also worthy of note that s 16(2) uses strong language in requiring the Ombudsman to investigate and report on a matter referred. It provides that the Ombudsman 'shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon'.

236 Additionally, ever since 1973, special provision has been made in the Act for the way in which the Ombudsman is to report in respect of a referral under s 16. That special provision is now contained in a stand-alone section, s 25AB. Accordingly, investigations on referrals under Division 2 of Part IV (which is wholly comprised of s 16) are specifically excepted from the detailed reporting requirements which are contained in s 23(1). Investigations under Division 1A (Protected disclosure complaints) are similarly excepted from the s 23(1) requirements. Those requirements are, however, applicable to every other kind of investigation under the Act. The expression 'administrative action taken by or in an authority' does not appear in Division 1A or Division 2 at all. By contrast, as demonstrated above, all of the other kinds of investigation (ie those to which s 23(1) applies) are confined to 'administrative action taken by or in an authority'. In relation to the investigations to which it applies, s 23(1) requires the Ombudsman to form an opinion as to whether 'the administrative action to which the investigation relates' has one or other of the qualities or features listed in that subsection and, if so, to take action as set out in sub-section (2) of s 23. Such action must include, in the usual case, making contact with the principal officer of the authority. These requirements have been contained in s 23 of the Act from the very beginning. If, as the Attorney-General would have it, the Act as a whole treats s 16 investigations as being not merely capable of extending to 'administrative action taken by or in an authority' but as being wholly confined to 'administrative action taken by or in an authority', then it is impossible to fathom why s 16 investigations have always been excluded from all of the reporting requirements of s 23.

237 This brings me to what might be described as the Attorney-General's in terrorem arguments. He characterised the President's construction of the Act as 'unbridled' in that it allowed for only one exception from the coverage of s 16, namely the exception stated in s 16(1) itself. At some points the Attorney-General seemed really to be contending that, somehow, s 16 just had to be more confined than that. Even if that contention were correct, it would not necessarily follow that the particular limitation suggested by the Attorney-General (that s 16 was limited to 'administrative action taken by or in an authority') was appropriately to be inferred. In fact, for the reasons I have already given, I consider that the Act evinces a clear intention that the particular limitation suggested by the Attorney-General is not to be inferred.

238 Glenister v Dillon[218] falls to be considered here. The parties' competing arguments about that case are set out in detail above. I accept that what was said about s 16 in Glenister v Dillon was obiter. I accept also that the Act generally is much changed since 1976. On the other hand, s 16 itself is relevantly unchanged. In my view, it is tolerably clear that Menhennitt J, at least, was of the view that s 16 should be interpreted literally and without importing into it any exception other than the stated exception for a matter relating to a judicial proceeding. That emerges most clearly, in my view, from the following sentence in his Honour's judgment (my emphasis):[219]

In the first place, [s 16] impliedly assumes that a matter of administration does not comprehend any aspect of legislative action and therefore it expressly requires the Ombudsman to investigate and report upon any matter referred to him by either arm of the legislature or committees thereof.

It is unnecessary for me to rule on the Attorney-General's submission that Glenister v Dillon involved error insofar as the Court proceeded by reference to an a priori distinction between legislative, executive and judicial functions of government. On the other hand, I would indicate that I do not accept that the general authority of Glenister v Dillon has been undermined by subsequent cases. In that regard, I would indicate my agreement with the submissions of the President. My final comment in relation to Glenister v Dillon is that respect and weight ought to be given to the view, albeit obiter, of Menhennitt J that, as at 1976, the scope of s 16 was not limited in any of the ways now suggested by the Attorney-General. I note that a learned commentator, writing about the Act as it stood just before the 2012/2013 amendments, has observed that:[220]

If the Ombudsman investigates a matter referred to him or her by Parliament, the Ombudsman shall investigate the matter, even if outside his or her normal jurisdiction (s 16(2) [Ombudsman Act 1973]).

239 Returning to the current state of the Act, I consider that the Attorney-General's expressions of alarm, in relation to the proposition that the Act does not operate to restrict s 16 in any way, are overstated. In my view, despite the presence in s 16(2) of the words 'notwithstanding anything to the contrary in this Act', it is quite clear that, as between those words and s 13AA(3), the latter should be regarded as the leading provision. Section 13AA(3) is not only a subsequent provision but it reinforces, and, in my view, it extends, the effect of the listing in Schedule 2 of the various 'exempt persons and bodies'. Moreover, it is a provision that is directed to the very subject matter of the Ombudsman's jurisdiction over particular persons and bodies. By contrast, the relevant words in s 16(2) have a different and narrower field of operation. Indeed, the Attorney-General may well be correct in his submission that they do no more than establish or confirm that the Ombudsman lacks any discretion to decline to investigate a matter duly referred under s 16(1). Since, in my view, s 13AA(3) applies so as to preclude the Ombudsman absolutely from conducting an investigation in relation to any exempt person or body, it would not be open to a House or committee of the Parliament to refer to the Ombudsman any matter that would involve an investigation of any such person or body.

240 Although there do not appear to be any other provisions in the Act expressed in a similar, general fashion such as would diminish the Ombudsman's jurisdiction by precluding absolutely a particular kind of matter from being referred to the Ombudsman under s 16, nevertheless there are numerous provisions in the Act which might, depending on the circumstances, operate to restrict, to an extent or in particular ways, the exercise by the Ombudsman of jurisdiction conferred on her by a referral under s 16. For example, s 13AB would prevent the Ombudsman from carrying out any such investigation in a manner that would prejudice any criminal proceedings, or criminal investigations, or investigations by IBAC or the Victorian Inspectorate[221]. Further, the Act provides for numerous procedural safeguards to protect the interests of persons and bodies who may become involved in investigations conducted by the Ombudsman. An example is that every investigation is to be conducted in private.[222] In addition, the Ombudsman is expressly required by various provisions of the Act to accord, in effect, procedural fairness to persons affected by her investigations.

241 As indicated above, I do not accept that the Attorney-General's submissions on jurisdiction gain anything from his reliance on the reference in s 16(1) to 'any matter...which that House or committee considers should be investigated by [the Ombudsman]'. On the other hand, it may possibly be the case that neither a House nor a committee would have power to refer a matter that could not reasonably be considered as relevant to its proper business.[223] Of course, there is no suggestion in the present case that the referral of 25 November 2015 extended beyond the proper business of the Legislative Council.

242 As to the suggestion by the Attorney-General that the President's 'unbridled construction' could lead to an overloading of the Ombudsman such that the exercise of her other functions might be detrimentally affected, I note that there has been no more than a handful of parliamentary referrals to the Ombudsman since 1973. In considering the proper construction of the provisions in question, it should not be speculated that the repositories of the power of referral under s 16(1), ie those who have been entrusted by the Parliament with the relevant responsibility, will be inclined to abuse or misuse the power of referral. In so saying, I have read and taken into account what is contained in the post-hearing submissions of the Attorney-General and the President relating to the constitutions and roles of the various Parliamentary committees mentioned. I do not accept the submission of the Attorney-General that according a literal construction to s 16 of the Act would be tantamount to treating a single House of Parliament or a Parliamentary committee as being capable of making new law. Rather, I entirely accept the submission to the contrary made by the President in that regard.

243 I turn now to the Attorney-General's submissions based on the references to 'corrupt conduct' in Parts III and IV of the Act and on the references to 'improper conduct' in related Acts, especially the IBAC Act and the Protected Disclosure Act 2012. (I exclude, for the moment, the Attorney-General's reliance on those matters as part of his further arguments - dealt with below - based on the provisions relating to protected disclosure complaints and protected disclosure entities). It will be recalled that, at the oral hearing, counsel for the President (the President, in turn, representing the Legislative Council itself) proffered a very short answer to these submissions. He simply disavowed any suggestion that the matter referred on 25 November 2015 involved any allegation of 'corrupt conduct' or 'improper conduct'. As indicated above, in response to that submission by counsel for the President, I referred to the (now discontinued) police investigation into related matters, and I expressed some concern that the Court would be put in an invidious position if it were neither common ground nor obvious that the referral did not involve any allegations of 'corrupt conduct' or 'improper conduct'. Of course, I made those remarks in open court. Plainly, they were made for the consideration of all parties. Subsequently, the Attorney-General made his oral reply to the President's oral submissions. During his reply, the Attorney-General made no reference at all to this point. Nor did he deal with it in writing or in any other way. Accordingly, I consider that I should proceed on the basis that it is common ground that neither 'corrupt conduct' nor 'improper conduct' is alleged.

244 In my view, that disposes of the Attorney-General's submissions in this particular regard. It is neither necessary nor desirable for me to express any view as to whether, in a case where a purported referral under s 16 did allege 'corrupt conduct' or 'improper conduct', the referral would be outside jurisdiction by reason of an implication that the stated exceptions relating to such conduct extend to s 16. In my view, the Attorney-General's submissions relating to 'corrupt conduct' and 'improper conduct' do not support, or even bear upon, his contention that s 16 should be regarded as limited to 'administrative action taken by or in an authority'.

245 This brings me to the last remaining group of submissions made by the Attorney-General. In essence, he contended that under no circumstances could there be a valid referral under s 16 of a matter relating to the conduct of a member of Parliament.

246 Insofar as that submission is based on the theory that s 16 is confined to 'administrative action taken by or in an authority', I reject it for the reasons already given.

247 Insofar as the submission is based on the existence in the Act of the provisions relating to protected disclosure complaints and protected disclosure entities, I reject it for the following reasons.

248 The particular provisions in question had no counterpart in the Act until they were introduced as part of the 2012/2013 amendments. It follows from what I have already written that my view is that, at least until those amendments were made, there was no basis for contending that members of Parliament were outside the scope of s 16.

249 I do not accept that the provisions relating to protected disclosure complaints and protected disclosure entities are in a form sufficient to indicate that they should be treated as exhaustive of the capacity of the Ombudsman to investigate the conduct of members of Parliament, such that any referral of such conduct under s 16 would no longer be open to a House or a committee of the Parliament.

250 The provisions do not contain any real indication that Parliament considered the Ombudsman to be no longer a suitable or appropriate person to investigate members of Parliament. Quite the opposite. The provisions plainly envisage, in fact, that the Ombudsman will investigate members of Parliament, at least in the circumstances specified in those provisions.

251 The specified circumstances involve a referral from IBAC of a 'disclosure' determined under s 26 of the Protected Disclosure Act 2012 to be a 'protected disclosure complaint'. The Protected Disclosure Act 2012 is the successor of the Whistleblowers Protection Act 2001. As the names of those two Acts suggest, the principal concern of each of them was or is with persons who witness or suffer from 'improper conduct' (as defined) or 'corrupt conduct' (as defined) and who may need encouragement and protection from reprisals or other consequences before they will report what they have witnessed to the appropriate authorities.[224] The elaborate substantive and procedural provisions of the Protected Disclosure Act 2012 and of the interconnected sections of the IBAC Act and the Ombudsman Act 1973 reflect the complex nature of the problems posed by such situations.

252 However, many other persons who have witnessed or suffered from 'improper conduct' or 'corrupt conduct' may have no reluctance to report the same, openly, to the authorities. Indeed, s 20 of the Protected Disclosure Act 2012 itself provides, in effect, that a disclosure will not be covered by the Act if, at the time the disclosure is made, the person making it expressly states in writing that the disclosure is not a disclosure for the purposes of the Act.

253 Further, at the relevant time, as indicated above, the definitions of 'improper conduct' and 'corrupt conduct' were such as to confine those concepts to criminal offences or to conduct amount to grounds for terminating the service of an officer. There will be many cases, of which the present case is apparently one, where a person or body may wish to raise less serious matters in relation to a member or members of Parliament, and to do so publically or at least openly. Other members of Parliament are indeed a good example. All members of Parliament, of course, enjoy complete immunity for anything they say in the public forum of Parliament.

254 It would be rather odd to treat the provisions relating to protected disclosure complaints, which are designed to deal with particular situations only, as implicitly covering the field so far as the relationship between the Ombudsman and members of Parliament is concerned. It is difficult to attribute to Parliament an intention that IBAC should be involved not only in situations of the kind envisaged by the Protected Disclosure Act 2012, but in every situation in which someone wants to raise a matter relating to the conduct of a member or members of Parliament. Indeed, even where a person wishes to make a 'protected disclosure' about a member of Parliament, the combined effect of ss 19 and 21(3) of the Protected Disclosure Act 2012 is that the disclosure must be made to the relevant Presiding Officer, not to IBAC, and the relevant Presiding Officer will then possess a discretion not to refer it to IBAC.

255 This view is also supported by s 16E of the Ombudsman Act 1973. The broad effect of that section as a whole (as in force at the relevant time) is summarised above and s 16E(1) (in particular) is set out in full. Section s 16E(1) has a dual significance. Firstly, it confines the obligation of the Ombudsman to notify IBAC to cases of corrupt conduct and police personnel conduct. Second, it assumes that the Ombudsman may become aware of a matter that appears to involve corrupt conduct while dealing with a complaint, conducting an own-motion investigation or 'performing any other functions under this Act'. The reference to 'any other functions under this Act' would seem to cover the function of dealing with a matter referred under s 16 of the Act.

256 Accordingly, the Attorney-General's reliance on Anthony Hordern[225] is misplaced. Rather, the present case is comparable with Nystrom[226] in which it was held that the two statutory powers in question were both available to the relevant Minister. The powers were separately sourced, they involved different subject matters and their exercise involved different consequences. The same applies here.

257 It follows that none of the matters relied upon by the Attorney-General prevent the referral to the Ombudsman of a matter relating to the conduct of a member or members of Parliament.

258 Finally, I accept the submission of the President that, for the purposes of construing the relevant provisions of the Act, it is unnecessary and inappropriate to consider whether or not, in the exercise of her function of conducting an investigation pursuant to the referral under s 16, the Ombudsman may be confronted with a question relating to parliamentary privilege. As the President submits, it is a matter for the relevant House or for the member or members of Parliament concerned to raise any privilege point.[227] In any event, I note that the Attorney-General has not suggested that parliamentary privilege would stand in the way of each and every part of investigation that the Ombudsman would be called upon to conduct pursuant to the referral of 25 November 2015.

259 For these reasons, I propose to make a determination pursuant to s 27 of the Ombudsman Act 1973 in the following terms or to the following effect:

The Victorian Ombudsman has jurisdiction under s 16(2) of the Ombudsman Act 1973 to conduct an investigation pursuant to the referral from the Legislative Council made on 25 November 2015.

260 I will hear the parties in relation to costs and in relation to any other orders sought.

[1] In this judgment, except where the contrary intention appears, a reference to 'the Act' is to be read as a reference to the Ombudsman Act 1973.

[2] By taking certain preliminary steps: the Ombudsman's affidavit sworn 28 January 2016 [19].

[3] The language of s 16 has since been amended to make it gender neutral. See further below.

[4] The Ombudsman's affidavit sworn 28 January 2016 [9].

[5] Cf CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, 11-12 [14].

[6] See, generally, the Ombudsman's written submissions dated 9 February 2016 [5]-[11].

[7] See, generally, the Attorney-General's written submissions dated 8 April 2016 [5], [15]-[19] and [33]-[34].

[10] The President of the Legislative Council's written submissions dated 18 April 2016 [8] (including [8.1]-[8.3]).

[12] Within Part IIIA, s 13A was amended, as from 1 July 2016, by s 56 of the 2016 Act. Section 56 provides:

Amendment of section 13A - Conducting of enquiries

(1) In section 13A(1) of the **Ombudsman Act 1973 - **

(a) in paragraph (a) omit '(other than an investigation on a protected disclosure complaint)';

(b) in paragraph (b), after 'matter' insert '(other than a protected disclosure complaint)'.

(2) In section 13A(3) of the Ombudsman Act 1973, after 'authority' insert 'or a protected disclosure entity'.

[13] This involves the repetition of s 16, but it is desirable to do so in order to show s 16 in its immediate context.

[14] But see now ss 57, 58, 59, 60, 61 and 62 of the 2016 Act.

[17] By s 65 of the 2016 Act, the range of persons and bodies to whom the Ombudsman may provide or disclose information under s 16L has been altered, including by the insertion of ss 16L(4) and (5) which relate to the provision of information to a Parliamentary Committee involved in determining whether there has been a breach of parliamentary privilege or contempt of Parliament.

[18] Section 17 has since been amended by s 67 of the 2016 Act so as to insert ss 17(6B)-(6E) which empower or require the Ombudsman to discontinue investigations in specified circumstances. These amendments do not affect the present constructional exercise, in my opinion.

[19] Sections 17, 18, 19, 20 and 20A of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before their repeal on 15 October 2014 as part of the repeal of Division 5 of Part I of that Act, are picked up by s 18(1) of the Ombudsman Act 1973. Notably, the former s 19C (incriminating answers) and the former s 19D (legal professional privilege), which were also contained in Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958, are not picked up by s 18(1) of the Ombudsman Act 1973.

[20] The only exception appears to be journalists' privilege under Division 1C of Part 3.10 of the Evidence Act 2008: see s 17(2) of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before its repeal on 15 October 2014.

[22] See s 70(4)(f)-(i) of the 2016 Act.

[23] A term defined in s 2 of the Act (see above).

[25] See s 70(5)(d) and (6) of the 2016 Act.

[26] Attorney-General's written submissions dated 8 April 2016, footnote 14.

[27] Schedule 1 was not amended by the 2016 Act except for the sake of gender neutral language. See s 70(7)(a) of the 2016 Act.

[28] The list runs from number 1 to number 37, and includes a number 33A.

[29] Once again, Schedule 2 was not affected by the 2016 Act except to bring in gender neutral language: see s 70(7)(b) of the 2016 Act.

[30] They are numbered from 1 to 18 and include an item 10A.

[31] Constitution Act 1975, s 94E.

[32] Constitution Act 1975, s 18(1B)(o).

[33] As from 1 July 2016, as a result of the coming into operation of s 4 of the 2016 Act, s 4 of the IBAC Act was amended so as to extend to the conduct of a person intended to adversely affect the effective performance of a public body or public officer and to result in the person (or an associate) obtaining a benefit that they would not otherwise have obtained. The section was also amended in related or ancillary ways. The amendments to s 4 of the IBAC Act are traceable to the decision of the High Court in Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1, a case referred to again below.

[34] As from 1 July 2016, as a result of the coming into operation of s 84 of the 2016 Act, the definition of 'improper conduct' in s 4 of the Protected Disclosure Act 2012 was amended in a way corresponding with the way in which the definition of 'corrupt conduct' in s 4 of the IBAC Act was amended (as indicated above in the previous footnote).

[35] See s 12 of the Protected Disclosure Act 2012 and see the Protected Disclosure Regulations 2013.

[36] As indicated above, there is a cross-reference in s 25A(1A)(b) of the Ombudsman Act 1973 to ss 53(2)(a), (c), and (d) of the Protected Disclosure Act 2012.

[37] See s 32 of the Protected Disclosure Act 2012.

[39] The Ombudsman's written submissions dated 9 February 2016 [27]-[39].

[40] Victoria, Parliamentary Debates, Legislative Assembly, 20 March 1973, 4201 (Sir George Reid).

[41] Victoria, Parliamentary Debates, Legislative Assembly, 20 March 1973, 4199 (Sir George Reid).

[42] Western Australia, Parliamentary Debates, Legislative Assembly, 7 September 1976, 2243-4 (Sir Charles Court).

[43] Ombudsman Act 1978 (Tas) s 16(1).

[44] Ombudsman Act 1972 (SA) s 14.

[45] New Zealand, Parliamentary Debates, 15 April 1975, 534 (Dr A M Finlay).

[46] The Attorney-General's written submissions dated 8 April 2016 [15]-[34].

[47] Here, the Attorney-General submits that there is no question that a resolution made by a single House of Parliament cannot alter the operation of a law made by Parliament itself: Stockdale v Hansard (1829) 9 AD & E 190.

[48] Citing Essendon Football Club v ASADA (2014) 227 FCR 1, 55 [277] (Middleton J).

[49] Citing R v Brown [1996] 1 AC 543, 561 (Lord Hoffman), quoted in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 397 (the Court); Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252, 261 [34] (Gordon J); State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 [95]. Semi-colon in original.

[50] [2015] HCA 14; (2015) 256 CLR 1 ('Cunneen').

[51] Cunneen [2015] HCA 14; (2015) 256 CLR 1, 28 [59]. Footnotes omitted.

[52] Cunneen [2015] HCA 14; (2015) 256 CLR 1, 28-29 [57]-[59], 31 [71] (French CJ, Hayne, Kiefel and Nettle JJ).

[53] Attorney-General's written submissions dated 8 April 2016 [20].

[54] Citing R v Independent Broad-Based Anti-corruption Commissioner (2016) 329 ALR 195 [76] (Gageler J); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [70] (McHugh, Gummow, Kirby and Hayne JJ).

[55] Referring to the Integrity and Accountability Legislation Amendment Act 2012 (Vic); Victoria, Parliamentary Debates, Legislative Assembly, Second Reading Speech to the Integrity and Accountability Legislation Amendment Bill 2012, 14 November 2012, 4979-4980 (Mr McIntosh).

[56] The Attorney-General submits that the long title of an Act may be used in the construction of the Act, citing, as an example, Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471, 477 (the Court).

[58] Ombudsman Act 1973 (Vic), s 17(1)(b)-(c), (4), (6).

[59] Ombudsman Act 1973 (Vic), s 17(5).

[60] Ombudsman Act 1973 (Vic), s 17(1)(d), (4A), (5A).

[61] Ombudsman Act 1973 (Vic), s 17(1)(d), (5A).

[62] Ombudsman Act 1973 (Vic), s 17(6).

[63] The President of the Legislative Council's written submissions dated 18 April 2016 [9]-[20].

[64] The matters highlighted in the President's summary of the Act are the subject of developed arguments made in due course.

[65] The President of the Legislative Council's written submissions dated 18 April 2016 [21]-[28].

[66] [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[67] Citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[68] In the cases of ss 16C(1) and 16D(1), the phrase is picked up by reference to other provisions: see above.

[69] Here the President refers to s 2(1) of the Act (definition of 'authority'); and item 7 in Schedule 2 to the Ombudsman Act 1973.

[70] The President notes that the other complaint investigation functions of the Ombudsman require a referral by IBAC: see the definition of 'protected disclosure complaint' in s 2(1) and the function relating to apparent corrupt conduct referred to in s 13AA(1)(a).

[71] The President here notes, again, that the other investigatory functions require a referral by IBAC.

[72] Citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [70] (McHugh, Gummow, Kirby and Hayne JJ).

[73] Integrity and Accountability Legislation Amendment Act 2012, s 227.

[74] The new s 13AAA was inserted by s 145 of the Protected Disclosure Act 2012 (Act No 85 of 2012). This provision, like the related provisions, came into operation on 10 February 2013. To the extent that, originally, the President's written submissions were inaccurate in relation to the detail of the amending legislation, they were corrected in this regard at the hearing before me: see Transcript of Proceedings, Glass v President of the Legislative Council (Supreme Court of Victoria), Cavanough J, 9-10 May 2016) 104 ('Transcript').

[75] Explanatory Memorandum, Integrity and Accountability Legislation Amendment Bill 2012, 69 (clause 228, as the clause for s 227 was then numbered).

[76] Victoria, Parliamentary Debates, Legislative Council, 11 December 2012, 5468-9 (Mr Pakula).

[77] Victoria, Parliamentary Debates, Legislative Council, 11 December 2012, 5469 (Mr Dalla-Riva).

[78] The President points out that members of the Victorian Parliament are not exempt persons and that electorate officers are not exempt persons either. He further observes that the referral does not require the Ombudsman to enquire into or investigate anything done by '[a] Department of the Parliament': item 18 in Schedule 2.

[79] By the Integrity and Accountability Legislation Amendment Act 2012 (Act No 82 of 2012), s 278, read with s 301.

[80] Here, reference is made to paragraph 30 of the Attorney-General's written submissions dated 8 April 2016.

[81] Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007).

[82] Victoria, Parliamentary Debates, Legislative Assembly, 20 March 1973, 4201 (Sir George Reid).

[83] Ombudsman investigation into the probity of The Hotel Windsor redevelopment, February 2011 ('the Windsor Hotel report'), paragraph 10.

[84] Version No 084 incorporating amendments as at 1 January 2010.

[85] Under s 13(2)(b), the Ombudsman was required to review the records of the police force at least twice during each financial year to monitor compliance by members of the force with Division 3 of Part IV of the Melbourne City Link Act 1995.

[86] The President's submission refers to those persons and bodies being then listed in 13 paragraphs, but, more accurately, there were 9 paragraphs listing 13 separate classes of persons and bodies.

[88] The Windsor Hotel report [70]-[78].

[89] The first three of the four listed changes were introduced by the Integrity and Accountability Legislation Amendment Act 2012 (Act No 82 of 2012). The fourth listed change was made by the Protected Disclosure Act 2012 (Act No 85 of 2012). As mentioned above, the President's principal written submissions were corrected in relation to the detail of the amending legislation at the hearing before me: Transcript 104.

[90] Referring to paragraph 33 of the Attorney-General's written submissions dated 8 April 2016 and also to paragraph 20 thereof.

[91] Citing Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414 (Griffith CJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby and Hayne JJ).

[92] Citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [70] (McHugh, Gummow, Kirby and Hayne JJ).

[93] The Attorney-General's written reply submissions dated 22 April 2016 [17]. See also at [5].

[94] Citing Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 345-346 (McHugh J).

[95] The Attorney-General's written reply submissions dated 22 April 2016 [9].

[96] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [70] (McHugh, Gummow, Kirby and Hayne JJ).

[97] However, in s 2 of the Act, 'complaint' is defined to mean a complaint under s 14. Such a complaint must be made to the Ombudsman and must be made by one or other of the persons listed in s 14(1). The defined concept does not extend to protected disclosure complaints, Parliamentary complaints, referred complaints or referred matters. See further below.

[98] The Attorney-General's written reply submissions dated 22 April 2016 [23].

[103] As indicated above, s 13AA(3) refers to exempt persons and bodies.

[105] Transcript 5-8. See also at 42-45.

[109] [1976] VicRp 57; [1976] VR 550.

[110] Section 13AB provides, in substance, that the Ombudsman is not to prejudice criminal proceedings or investigations.

[111] Transcript 20. This point was elaborated somewhat in discussions at Transcript 28-30.

[113] [2015] HCA 14; (2015) 256 CLR 1, esp at [2], [32], [35], [37], [57], [58], [59] and [61].

[119] Transcript 31. See also at Transcript 32-33.

[132] [1976] VicRp 57; [1976] VR 550. See above and see further below.

[138] Victoria, Parliamentary Debates, Legislative Council, 11 December 2012, 5468 (R A Dalla-Riva, Minister for Employment and Industrial Relations); Transcript 55.

[143] The definition is referred to above.

[149] [1976] VicRp 57; [1976] VR 550.

[151] (2009) 29 VR 160, 177 [85]. Footnote omitted.

[152] As with the Attorney-General, the President's oral submissions on this topic were largely overtaken by his later written submissions on it.

[154] The President returned to this on the second day of the hearing: see below.

[159] Transcript 90-93. This appears to be a reference to s 26(2A) of the Interpretation of Legislation Act 1984, which refers to headings to sections. The President's submission appears not to take account of s 36(1)(a) of that Act which provides that headings to Divisions do form part of an Act.

[160] (1998) 194 CLR 355, 381-382 [70].

[165] Since then, it has been publicly announced by the Victoria Police that they will take no further action in this matter.

[171] The President also mentioned, in passing, s 13(4) of the Act in its original form in this context.

[172] Transcript 137-138. Much the same point was repeated at Transcript 145-148.

[179] [1932] HCA 9; (1932) 47 CLR 1 ('Anthony Hordern').

[181] [1995] HCA 44; (1995) 184 CLR 453.

[182] Ibid 463. Footnote omitted. See also at 479 (McHugh and Gummow JJ).

[183] [2008] HCA 49; (2008) 235 CLR 619, 623 [16]. Footnotes omitted.

[184] [2009] HCA 41; (2009) 239 CLR 27, 46-47 [47]. Footnotes omitted.

[185] [2014] HCA 24; (2014) 255 CLR 179 ('Plaintiff S297/2013').

[187] Cited as (1998) 194 CLR 355, 182 [70].

[188] Citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39].

[189] Citing s 11B(1) of the Acts Interpretation Act 1901 (Cth). There is no express counterpart of this provision in Victoria, but, as was held in Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, above, the statutory provision is merely declaratory of the common law: see Pearce and Geddes, Statutory Interpretation Australia (8th ed, 2014), [7.23].

[190] Citing Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 463.

[191] Citing, by way of comparison, Project Blue Sky inc v Australian Broadcasting Authority (1990) 194 CLR 355, 382 [70]; and citing also Ross v R [1979] HCA 29; (1979) 141 CLR 432, 440.

[193] [1932] HCA 9; (1932) 47 CLR 1.

[196] [2006] HCA 50; (2006) 228 CLR 566 ('Nystrom').

[200] Paragraph (d) reads: '(d) the making of a recommendation (including a recommendation made to a Minister)'.

[202] [2015] HCA 14; (2015) 256 CLR 1, 29 [59].

[204] [1963] HCA 25; (1963) 109 CLR 434 ('Brodsky').

[205] [1963] HCA 25; (1963) 109 CLR 434, 438.

[206] [1914] AC 237, 251; [1913] UKPCHCA 4; (1913) 17 CLR 644, 650.

[207] [1954] HCA 31; (1954) 90 CLR 177, 182.

[208] The Attorney-General's written submissions dated 8 April 2016 [20].

[210] Thompson v Goold [1910] AC 409; Lowe v The Queen [2015] VSCA 327 [20] (Warren CJ).

[213] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 93-94 [243] (Kirby J), Pearce & Geddes, Statutory Interpretation in Australia (8th ed, 2014) [1.6].

[214] Taylor v Owners-Strata Plan No 11564 [2014] HCA 9; (2014) 306 ALR 547, 557 [38]; Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [44].

[216] Cunneen [2015] HCA 14; (2015) 256 CLR 1, esp at 28-29 [57]-[59].

[217] See Ombudsman Act 1973, s 16A(1).

[218] [1976] VicRp 57; [1976] VR 550.

[220] M Frahm, 'Australia: Victorian Ombudsman' in International Ombudsman Institute (ed), Australasia and Pacific Ombudsman Institutions: Mandates, Competences and Good Practice (Springer, 2013) 177, 180.

[221] Arguably, s 15D gives s 13AB jurisdictional effect in relation to protected disclosure complaints in particular.