Wednesday, 15 September 2021

 Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (10:25): I move:

That this house:

(1)   notes the:

(a) failure of the government to comply with the resolution of the Council of 5 May 2021 requiring the Leader of the Government to table in the Council the Victorian Equal Opportunity and Human Rights Commission’s (VEOHRC) review into the nature, prevalence, drivers and impacts of discrimination, sexual harassment and victimisation in the Country Fire Authority and Metropolitan Fire Brigade;

(b) Attorney-General’s letter of 19 May 2021 in response to the order to produce these documents that stated that the government does not hold a copy of the review and that the VEOHRC advised that it cannot provide a copy of the review to the government due to orders made by the Court of Appeal on 4 October 2018;

(c) ruling made by the President on 4 May 2021, upholding a point of order highlighting that the government had claimed executive privilege over certain documents but had failed to produce them pursuant to the terms of standing order 11.03;

(2)   further notes that, if the resolution of the Council is not complied with, the Council reserves its right to find the Leader of the Government guilty of a contempt of the Council and this may result in a formal motion of censure of the Leader of the Government;

(3)   further notes the accepted practice in the New South Wales Legislative Council that, if documents are legally in the custody and control of an agency rather than a minister, the agency is required to comply with an order to produce those documents to the house;

(4)   further notes the legal opinion tabled in the New South Wales Legislative Council on 18 November 2015 by Mr Bret Walker, SC, reiterating the right of Australian state houses of Parliament to demand documents from all government agencies, directly if necessary, consistent with their ancient privileges and powers;

(5)   requires:

(a) the commissioner and the executive director of the VEOHRC to provide the documents outlined in paragraph (1)(a) to the Clerk for tabling in the house within 14 calendar days following the adoption of this resolution;

(b) requires the Leader of the Government to table within 21 calendar days following the adoption of this resolution all documents outlined in paragraph (1)(a);

(6)   authorises the Clerk to communicate this order to the commissioner and the executive director of the VEOHRC and table any documents received from the VEOHRC under paragraph (5)(a) in accordance with standing order 11.02; and

(7)   further notes that standing order 11.03 provides a mechanism whereby documents that the government agency or individual is of the view should not be released can be subject to the ruling of an independent legal arbiter.

This motion follows directly from the earlier motion in the chamber that was carried by the chamber which sought to provide those CFA documents and the report which was commissioned by the previous minister, a member of this place, and relates to the very serious allegations and circumstances in a number of these fire services. It is clearly in the public interest for these documents to be in the public domain. It is clearly something that should not be covered up in this way.

If we take at face value the Leader of the Government’s view or opinion that she cannot get these documents and that VEOHRC will not hand them over to her, we can rely on the material from New South Wales and the process that has been adopted regularly in New South Wales, including with greyhound boards and others. And I think the Bret Walker opinion from 2015 is a definitive opinion. It makes it very clear that those documents can be obtained by the chamber. It makes it very clear that the powers of the chamber are such that they can demand the documents.

We think that it is entirely reasonable to rely on the precedent from New South Wales. We think it is entirely reasonable that the documents should be provided to the chamber in that way. Accepting that the Leader of the Government has not got the documents, we now know where the documents are. The precedent comes directly from the ancient powers of the chamber but has been tested in the High Court in Egan v. Willis. Bret Walker was the counsel for that case, again relating to powers to obtain documents through orders and relating to the ability of the chamber, in fact, to discipline the then Treasurer, Michael Egan, in New South Wales. So it is very clear that the powers exist, very clear that there is precedent and very clear that the pre-eminent barrister in the land on these matters and powers, Bret Walker, has given a specific opinion to the New South Wales Legislative Council that its powers are such—and arguably the powers of the Victorian Parliament are actually slightly greater than those of the New South Wales Legislative Council—that those documents should be provided. It is in the public interest. It follows an earlier order of the Council where we made a decision to seek those documents, and we rely on those New South Wales precedents.

I think on a broader point, aside from the machinery and the documents aspects of this, it is in the public interest, and I do not think any of us want this to go on longer. These documents and this report—it is a very important report—should be in the public domain. We have seen recent serious matters come to the fore, and the community, I think, wants a better way forward with respect to the bullying, intimidation and unsatisfactory circumstances that appear to persist in our fire services.

 Mr ERDOGAN (Southern Metropolitan) (10:31): It will come as no surprise that the government will be opposing this motion. On 5 May 2021 the Council ordered the Attorney-General to produce the Victorian Equal Opportunity and Human Rights Commission review into the nature, prevalence, drivers and impacts of discrimination, sexual harassment and victimisation in the Country Fire Authority and Metropolitan Fire Brigade, as was briefed to the government and the board of the MFB in January 2018. In response to this order, on 19 May 2021 the Attorney-General tabled a letter noting that thorough and diligent searches have been conducted, the government did not possess a copy of the review and the commission had advised the Attorney-General that it could not provide a copy of the review to government because of orders made in UFU v. VEOHRC [2018] VSCA 252. The position stated previously by the Attorney-General, that the government does not have a copy of the review, has not changed, and the government is therefore still unable to provide to the Council or compel the commission to provide a copy of the review. I will add that the order made by the Court of Appeal stated that the commission are restrained from publishing any report arising from or in connection with the review.

This motion therefore creates a dangerous precedent that at any point the Parliament or indeed any party holding a majority of members in the Legislative Assembly that dislikes a decision of a court of Victoria can pass a motion that seeks to invalidate the decision of that court and seek whatever it wants. Such a move flies in the face of the fundamental legal principles of the separation of powers doctrine and seeks to encroach upon the independence of the court by declaring the Parliament as not only the maker but also the arbiter of the law. Moving to undermine this vital safeguard of democracy and the rule of law is not the outcome any member of this place should be seeking to enact, but that is exactly what this motion will do.

The motion should also be of deep concern to the many Victorians who every year seek the support of our courts and legal system to appropriately restrain the release of information for a range of reasons, including the safety and privacy of members of the community. It is deeply concerning that the opposition is seeking to engage the support of the crossbench in its endeavours to create a precedent that has the potential to undermine the reasonable and appropriate protections that our legal system affords all Victorians. I want to make that point: this is a dangerous precedent, because the decisions made in this term may also be reflected in future terms in this chamber.

The order by the Court of Appeal further states that the commission are restrained from continuing to conduct the review or from taking any further steps whatsoever in the conduct of the review. It should therefore be noted that the opposition is attempting to overrule the orders of the Supreme Court of Victoria to force the commission to provide documentation in relation to a review that the court determined it was not authorised to conduct and was restrained from completing and that is more than five years old now. It raises serious concerns in relation to any individuals who may have been identified in parts of the review that have been completed and who will not be afforded any rights to privacy or even procedural fairness in relation to documentation that will be at best incomplete.

I think it is also appropriate at this stage to reflect on what people in the profession or people with experience in jurisprudence are saying. To quote a former barrister and member of the Victorian Bar:

… our courts must be … above partisan politics.

He goes on to say that:

… Victoria needs an independent judiciary now more than ever.

Mr Finn: Hear, hear!

Mr ERDOGAN: I agree: hear, hear! And who wrote these sage words? It was none other than Michael O’Brien, the member for Malvern in the other place and the former Leader of the Opposition. Mr O’Brien said that last night on his personal social media page. It was no surprise he was not right for the Liberal Party’s leadership. He spoke up about the need for integrity and judicial independence, presumably stemming from the overreach of this Parliament, but was obviously asking for far too much from his party when he did so. I will leave it up to members here to decide whether or not he wrote those words with today’s motion in mind.

But the level of contempt by the state opposition for the legal profession and our courts was on display for the whole Victorian community this weekend when I discovered that my learned friend Mr O’Donohue, who had an esteemed legal career prior to entering this place, was to be replaced as Shadow Attorney-General with someone with no legal training whatsoever—a complete contempt for the profession and the courts. If the opposition actually cared about the nature, prevalence, drivers and impacts of discrimination, sexual harassment and victimisation in our emergency services, they would not be trying to play politics with an incomplete report from years ago. They should be joining the government in our endeavours, because as a government we have supported the implementation of Australia’s first-ever royal commission into family violence. We have created the Gender Equality Act 2020 and the ministerial task force on workplace sexual harassment—and I look forward to its report, which is due later this year—which is developing reforms that will prevent and better respond to sexual harassment in workplaces across our state. The government is working with Victoria’s emergency services and organisations, who are already implementing programs to improve culture and diversity within the sector and improve complaints handling processes within their organisations. This government takes combating discrimination of all forms very seriously and has implemented a whole host of laws and regulations to prevent discrimination and to promote positive and safe environments for everyone.

I ask that this motion be treated as nothing more than gross politics from an opposition that is playing to its base and from a Shadow Attorney-General that is not even a lawyer. I was actually pleased to hear that Mr Davis was referring to someone that was a Senior Counsel. At least there is someone with a legal mind on the opposition side, because they have clearly got rid of the people that had some legal grounding, being Mr O’Brien and Mr O’Donohue, my learned friends.

This motion before the house does raise issues that are of public importance, and I accept that. I accept that we should be talking more about workplace culture, about gender diversity and about cultural diversity. These are matters of the utmost public importance, but they are not matters that this motion seeks to explore. This is a political witch-hunt by the opposition, and it is disappointing that this matter keeps getting raised in this chamber and in the other place, in the Legislative Assembly, time and time again. It is relitigating the same issue. I think the legal precedent has been set. As I quoted earlier, the judgement in this matter was quite specific in that the Victorian Equal Opportunity and Human Rights Commission is restrained from publishing any report arising from or in connection with the review.

A motion such as this is clear. It says that at any moment, at any time, based on political whims, we will override the decision of the Victorian Court of Appeal if required—if we benefit from it. And it is the wrong signal. To reiterate Mr O’Brien’s quote, we all know the importance of an independent judiciary, and that is why I think this kind of level of interference is unforeseen and not in the customs or traditions of the Westminster system. It is definitely out of place, and that is why I think it is a big step that this motion is asking for. It is a grave step. It is a step in the wrong direction for this chamber to be taking and a level of interference.

On the issues more broadly, of public interest, of diversity and of gender equality in workplaces, I think they are debates we need to have in this place. We should continue to have them. We should have them in our workplaces, we should have them in our families, we should have them with our friends and in our sporting clubs—because I think that is a broader societal issue that seeks to, I guess, rectify the historical injustices in place. It goes beyond gender equality. It goes into cultural diversity and other matters that the public does have an interest in.

I do not want to move too far away from the motion before this chamber, but I do want to remind members that I think the public does have an interest in these kinds of issues—because we have a state opposition leader whose record on, I guess, scapegoating certain minorities for political benefit is there for all to see. I do not want to re-enter or relitigate those issues at this point, but I think my point is clear on this motion. This motion flies in the face of a court order, a specific court order that is quite restrictive on the Victorian Equal Opportunity and Human Rights Commission, and we should respect in this place the decision of the court.

On that point, I hope that the crossbench is not convinced by these arguments being put forward by Mr Davis and the opposition, as they would undermine fundamental principles and doctrines of our legal system.

 Ms PATTEN (Northern Metropolitan) (10:41): I am pleased to rise to speak to Mr Davis’s motion 621. As Mr Davis quite eloquently put, this is a simple documents motion. It is simply suggesting, as the Bret Walker advice to the New South Wales Parliament stated, that this Parliament does have the ability to compel independent organisations or statutory organisations to provide documents to this Parliament. Under our Evidence Act 2008 and under our Parliamentary Committees Act 2003 we see this. In fact the Legal and Social Issues Committee has used that power a number of times in recent years to compel witnesses and documents to be brought forward to the committee as part of its inquiry process.

So, on the face of it, asking for a report or a review done by a statutory body such as the Victorian Equal Opportunity and Human Rights Commission would seem quite simple and it would seem that Mr Walker’s advice supports that. However, there is one I think very substantial fact that has not been mentioned in the very motion that is on the paper or in Mr Davis’s contribution earlier—that there is a court order on this review. And not just a court order; it is from the Court of Appeal. It is three judges ordering VEOHRC not to publish the review or the report. So we are now putting VEOHRC into an extremely difficult position, I would suggest. We are also, I would absolutely suggest, effectively overriding that order—or fighting or arguing to override the order of a Court of Appeal.

Now, Mr Davis says that we are entitled to do that—but does that make it right? And what sort of precedent does that set? Last week Mr O’Donohue and I put up amendments to limit the ability of the government of the day to expand suppression orders or victim privacy orders, and we were very concerned that this was giving the government too much power to make directions to the courts. We were specific about that, and Mr O’Donohue, on behalf of the Liberal Party, and I put up very similar amendments that successfully passed this house. Today we are being asked to overrule a court order, to overrule the Court of Appeal, to do this.

Mr Davis says we have every right to do that. I am yet to understand the public interest in doing that. I have great concerns about what sort of precedent this would set. Could a future government override a suppression order, override a victim privacy order, because they may suggest that it would be in the interests of the Parliament or in the interests of the government of the day for that information to be made public?

Now, this is a report that was done five years ago. If this motion was serious about achieving equality in our emergency services, well, that would have been an interesting motion to debate: how do we do that? I have a constituent; she is a terrific football player at Fitzroy, and she just got into the fire services. Just last week she was accepted in, and she is extremely excited about this, and I am very pleased to see that. But she will be in the minority. She will be sadly still just one of a handful of female firefighters, and I would support anything that changed that. But to overturn a Court of Appeal decision and put the very treasured institution VEOHRC in a position where they will be in contempt of court or contempt of Parliament—you choose. I choose not to put them in that position.

Today is the International Day of Democracy, and I certainly feel that one of the pillars of our democracy is that clear separation of powers. It is one of the pillars of our democracy, and I feel that this would be an absolutely egregious encroachment upon that separation.

 Ms LOVELL (Northern Victoria) (10:47): I would like to start by congratulating Mr Davis on his motion and also on the work that he has done to uncover the precedent that provides for the release of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) report. It amazes me that we are back here once again trying to secure the release of such an important report. Mr Erdogan said it is disappointing that we are back here debating this again. What I find disappointing is the government’s willingness to cover up abuse and sexual assault in a workplace. That is extremely disappointing. What we need is for this report to be actually released.

This debate and this report are not about establishing whether this behaviour exists in our fire services. The fact that it does exist has been very well documented, and that is why the VEOHRC review was commissioned in the first place. This is a review that was commissioned by this government but has never been released due to the objections of the United Firefighters Union. There is an old saying that you have nothing to fear unless you are guilty or you have something to hide, and it seems that there are only two bodies with an interest in blocking the release of this report—the UFU and the Andrews Labor government.

When the then minister, Jane Garrett, commissioned this review, the fire services welcomed it. They knew then that there was a problem, and they were willing to face it in order to fix it. Volunteer Fire Brigades Victoria, the representative of the volunteer brigades, also welcomed the review. It was only the UFU who objected and who have denied the victims of abuse their right to have their voices heard, ensuring no female would face the same abuse in the future. While this abusive behaviour has traditionally been towards women, we want to also ensure that no-one is subject to abuse in our fire services. Unfortunately the Andrews Labor government has chosen to side with the UFU and deny any justice or closure to the victims and has also failed to ensure that our fire services will be safe places for everyone in the future.

The UFU first tried to prevent the release of this report in 2017, but in late 2017 Supreme Court Justice Ginnane dismissed the application by the UFU to prevent VEOHRC from conducting and publishing a review into the nature and prevalence of discrimination, sexual harassment and victimisation within the MFB and the CFA. This made way for the report to be published. The following February—February 2018—the brave victims who had participated in the review were advised that it had not yet been published because copies had been provided to stakeholders and agencies to allow them to respond.

I have spoken with some of these participants, and they are absolutely furious that the government say this report cannot be found. The participants were advised that the draft report had gone to agencies but not told which agencies. This report contains very personal information pertaining to the victims, and therefore they have a right to know which agencies received a copy of the draft report, who within those agencies received the draft report and who has seen the content of the report. Was it shown to some of the perpetrators of the abuse? Was it received in hard copy or electronically, and if electronically, was it forwarded to anyone? How was it stored? Where was it stored? Why can’t it be found now? Where has it gone? And how would every agency just happen to lose it?

As I said, the draft report that the agencies received contains highly sensitive and deeply personal information, and the participants want to know who has seen their information, the content of their contributions that were included in the draft report, why the reports cannot be found, where those reports have gone now, who has them, how the holders of the report might use the information or if they might publish the contents in another way. But most of all the participants have a right to know why the government have deserted them and why they just do not care about the victims or the missing report. This is just appalling. The government commissioned this report. Victims participated—in good faith they participated. This was a deeply traumatic and deeply personal thing for the victims to participate in. The government have now just deserted these victims. They do not care that the reports may have been lost or that they may be in the possession of the abusers. They do not want to stop this behaviour in the fire services. They prefer to side with their union mates rather than side with the women and protect those who have been the subject of this abuse.

It may just be possible that the agencies have returned the reports to VEOHRC, but the government, in saying that they could not be found, have confirmed that that is not the case. Otherwise they would be saying the agencies returned their copies to VEOHRC, not that the copies cannot be found. It is also possible that a direction was given to all of the stakeholders and agencies to destroy their copy of the report, and if that is the case, we all have a right to know who issued that directive. If it was a directive from VEOHRC, the government would have simply said, ‘All copies have been destroyed at VEOHRC’s request’, but that is not what the government is saying. They are saying they cannot be found. Therefore it is reasonable to ask if there was a directive from the government, or even worse, a directive from the UFU via the government, to destroy the reports. And is the government trying to cover this up by saying they cannot be found?

Following Justice Ginnane’s decision the UFU lodged an appeal in the Court of Appeal. The result of the UFU’s appeal was a split decision: two to one, with one dissenting judge, Justice Tate, writing a lengthy alternate decision that could have easily been used as a basis for an appeal of this decision not to release the report. Given that VEOHRC already had that dissenting judge’s alternate decision to base an appeal on, and given that it is very much in the public interest for this report to be released in order to address discrimination and sexual abuse in our fire services, I am absolutely gobsmacked that VEOHRC did not appeal this decision.

The whole saga stinks. There is something very, very wrong here, and Victorians have a right to know why this government has gone to such lengths to cover this up. Why are they supportive of their union mates instead of the victims of abuse who have bravely participated in this report? Mr Davis has outlined the precedents for the release of this document via the legal opinion tabled in the New South Wales Legislative Council on 18 November 2015 by Mr Bret Walker, SC, and the Andrews government now has nowhere to hide. This report must be released.

 Ms TAYLOR (Southern Metropolitan) (10:54): I will put it clearly on the table, although it has already been eloquently expressed by Mr Erdogan a little earlier, that the government will be opposing the motion for a range of very serious reasons that the previous speaker for the government, Mr Erdogan, has already outlined. I find it mind-boggling that the opposition has the gall to stand up today and lecture us on respect and integrity. This is coming from the party that put out threatening robocalls saying this government’s legislative reforms were putting families at risk—and I note—a move described as highly irresponsible by the CFA. It was the then shadow emergency services minister who made the egregious claim—

Mr Davis: On a point of order, Acting President, this is actually a relatively narrow debate. It is about the precise document, one document, that we are seeking. It is also a document that is clearly identified. It does relate to the matters of bullying and so forth in the CFA and the MFB. But it is not a broad debate about everything about the CFA, everything about the MFB and beyond.

Ms Shing: On the point of order, Acting President, it is really unfortunate when Mr Davis raises these points of order around a narrow-cast motion given the other speakers on this motion have traversed some very wide ground indeed. So I would suggest that strategically it might be useful to confine speakers to the narrow nature of that motion in order to then rely upon a point of order like this.

Mr Davis: Further to the point of order, Acting President, the other speakers have actually been quite narrow. Ms Patten was quite narrow, Mr Erdogan was quite narrow and Ms Lovell was also quite narrow.

Members interjecting.

The ACTING PRESIDENT (Mr Bourman): I think we will just keep it at the moment to: can people just keep their contributions to the documents motion and perhaps not stray outside the actual issue at hand.

Ms TAYLOR: I note that we are speaking relative to the motion as it has been drafted, and I do not think it is outside the scope to speak to hypocrisy from those opposite—which is actually directly relevant to the discussion today when we are talking about matters of integrity and respect, thank you very much. It was the then shadow emergency services minister who made the egregious—

Mr Davis: On a point of order, Acting President, she is actually again heading into terrain that has nothing to do with the motion, nothing to do with the document, nothing to do with the matters around this issue.

Ms Shing: On the point of order, Acting President, Ms Taylor has specifically referred to the motion as it has been drafted. Again, should Mr Davis seek to rely upon an argument of scope in saying that this is purely a documents motion and that we should not stray into the subject matter, then the motion ought not to have been drafted in the fashion that it has been.

Mr Davis: Further to the point of order, Acting President, it is actually very narrow. It describes the document and what the document dealt with at the start. It describes, then, a series of processes, including in this chamber. It describes legal opinions, it describes a mechanism and it actually points out—indeed in the final clause—a mechanism for dispute resolution on the documents.

Ms Shing: Further on the point of order, Acting President, Mr Davis in his own contribution referred at length to the process of receiving advice from Bret Walker, SC, as Ms Lovell then went on to refer to a single member of the bench on the substance of the issues being sought on release of the document. This is then something which is squarely within the contemplation of Ms Taylor’s contribution to date. Again, it is directly relevant to the contributions which others have made on the issue.

Members interjecting.

The ACTING PRESIDENT (Mr Bourman): I think we have covered this off. The problem we have right at this moment is that it is time to break for question time.

Business interrupted pursuant to order of Council of 7 September.