Wednesday, 15 September 2021

The ACTING PRESIDENT (Mr Bourman): Further to your point of order, Mr Davis, I am not going to uphold it, but I invite the member to keep her contribution to what is on the notice paper. If we go off on a tangent, if you can bring it back to what is on the notice paper, that will make it a lot easier, rather than an interpretation of what the notice paper may or may not say. It is fairly narrow, even though it is quite lengthy, so can you just keep it going down that nice little narrow path.

 Ms TAYLOR (Southern Metropolitan) (11:44): If I may say, the premise upon which I was putting forward various points for Hansard, on the record, was that it goes to the premise upon which those opposite are taking this motion and the extraordinary action that they are asking of this chamber in seeking—and I will go further to the issue with regard to seeking to in effect overrule the courts—on the premise, if I have understood correctly, that part of the justification for their motion today is claiming to have a particular affection for or to be putting forward a certain element of advocacy on behalf of members of the CFA. That is what I am hearing, and so that is why I think we are perfectly justified to rebut that premise, because we are pointing out, as we are entitled to do, witnesses in the argument that you are putting forward. That is what I was seeking to do. Now, it might be unpalatable to those opposite when they have to face actions they have put forward in the past, but I think we are justified in doing so.

The ACTING PRESIDENT (Mr Bourman): Order! Ms Taylor, you are kind of half-debating the point of order, which is done. If we can just move on, it would be fabulous.

Ms TAYLOR: Fabulous? All right. On that point of the extraordinary ask of this chamber and all the members in this chamber, the opposition seeks to use this motion to create a dangerous precedent. I feel on a personal level, not to mention our government, extremely uncomfortable with what you are seeking to do and the outrageous position that you are putting the court system and the Victorian Equal Opportunity and Human Rights Commission in at this point of time. It is outrageous, and I think it is actually arrogant, seeking to overrule a matter that is in a court. I think it is outrageous because you are setting a precedent that goes against the very grain of the legal system. I think it would be timely and appropriate for those opposite to reflect on what they are seeking to do and what they are seeking for us to do as members in this chamber—the position that they are putting everyone, and our integrity in this chamber, in.

Whilst those opposite seek to use this motion, as I was saying, to create a dangerous precedent that would seek to invalidate the decisions of any court the opposition disagrees with—hence the arrogance, the flagrant disregard, and I think we can see why that is a very dangerous precedent—we would rather talk about, contrary to what has been asserted by those opposite, the very real issues of bullying, harassment and sexual offending that continue to pervade our workforces and, further to that point, what we are doing about them, because we actually want to tackle these issues head-on. We do not just want to make a dangerous political point in the chamber, and it is just a political point that you are seeking to make. It is limp, and that is why I made the statement about it being galling, because in light of your past behaviour on such matters—I do not mean you personally committed these actions; I am just saying with regard to the CFA and the like, and I was not allowed to entertain that point further—

Mr Davis: On a point of order, Acting President, we are beginning to stray again into the territory that we do not need to stray into.

The ACTING PRESIDENT (Mr Bourman): It is kind of straying there, but it is still not there. If you can just try not to.

Ms TAYLOR: Far from seeking to silence—to your point, Ms Lovell—or minimise the very real problems that exist, this government is calling out this behaviour, supporting victims and backing our emergency services agencies to change the culture that has been a blight on all for too long.

 Ms SHING (Eastern Victoria) (11:49): Well, if we were concerned about relevance in previous contributions, we need not be concerned any longer, because what I want to talk about today is the separation of powers, and what I want to talk about today is the nature of decision-making as it occurs between the Parliament on the one hand, the judiciary on the other and the executive. When I say judiciary, this includes not just quasi-judicial tribunals, including but not limited to statutory bodies such as the Victorian Equal Opportunity and Human Rights Commission, and indeed I think Mr Davis had referred in his contribution to racing tribunals and decision-making bodies in New South Wales as being a proper basis upon which to argue that information could be sought and indeed provided to this Parliament.

What I also want to do, though, in the time I have available today is talk about the fact that this motion is essentially seeking something which seeks to in fact trample over the well-established, well-affirmed and indeed inherent concept of our Washminster system, being the hybrid that it is.

Ms Lovell: Washminster?

Ms SHING: Yes. It is a hybrid, Ms Lovell. So what I would encourage those opposite to do is to reflect on a number of contributions which they themselves have made, when they have occupied government benches, around the sanctity of the separation of powers as it operates when they are in government. Now, Hansard speaks for itself in that regard, and there are countless examples. But one of the things we heard, just this morning from Mr Erdogan, was a contribution about the former opposition leader, Mr O’Brien—a barrister and, therefore, somebody who is licensed to drive an argument of this nature around the separation of powers—in fact saying that it is necessary and appropriate to have regard for this particular distinction between the Parliament, the executive and the judiciary as it relates to decision-making and to the release of documentation, such as the report being sought by this motion.

We have seen a broad collection, I would say a loose rabble, of motions put in this Parliament and indeed in the previous Parliament, usually led by Mr Davis—and you have to give him points for persistence on this—for production of documents, claiming in one breath that privilege ought to be something that can be put to one side, claiming in another breath that commercial-in-confidence documentation ought to be able to be put to one side, claiming in another breath that the separation of powers is but a garnish on parliamentary democracy and indeed the social contract that we have here in Victoria, but then when in government in fact claiming the exact opposite.

So it is more than a little rich that on the one hand we have Mr O’Brien saying, ‘Our courts must always be above partisan politics’, before then saying, ‘Victoria needs an independent judiciary now more than ever’, and then having Mr Davis come to this chamber and argue that it is within the purview and the remit of this Parliament to set aside the consideration and the sanctity of the judiciary in reaching the conclusions that it has in this matter as it relates to appeal applications and proceedings, which have reached a Court of Appeal decision—comprising three members of the judiciary—and go beyond the advice which Mr Walker has indeed provided around release of this documentation.

We hear those opposite flinging around references to the High Court, flinging around references to Justice Ginnane and indeed to others who have expressed opinions and made decisions around the capacity to release this information, but those opposite then conveniently neglect to reference the consideration and determination of this matter which has resulted in an order not to release this information and the report in the terms sought, in response to an application by one of the interested parties to that matter.

Now, I do not know what the review says. I have not seen it. It is pretty clear that people here have not seen it, and it is pretty clear that there is a lot of speculation about it in this chamber and indeed in the public domain. I would suggest that in fact it is interesting to look not just at what is being sought but why it is being sought. Time after time we see attempts in this Parliament made by people who in fact, in my view, should know better and, in my view, do know better. With kudos to Mr Davis, he has been here long enough to understand the way in which the separation of powers operates. He has been here long enough to have been part of a government which has tied its colours to the mast in relation to the sanctity of the separation of powers. He has been a member of an opposition led by a legal officer qualified to practise and indeed with many views that perhaps carry a little more weight than the armchair experts who are drawn to comment on these matters.

Yet now, for the sake of what I would say are other purposes, Mr Davis comes here and he seeks to run roughshod over the determination of a Court of Appeal decision and the order which has flowed from it. So we will no doubt see many more motions like this. We will no doubt—as we have done in this Parliament and indeed the last Parliament—hear many claims from Mr Davis and indeed from others about why it is that documents should be released. Mr Davis will indeed trot out, as he always does, as his colleagues do, the putative primacy of the public interest. The primacy of the public interest, interestingly, only seems to apply to the opposition when it works for the purposes of their broader narrative. So what we do need to understand is that as much as Mr Davis and his colleagues might wish that this were—

Mr Davis interjected.

Ms SHING: Thank you for the water, Mr Davis. See, this is the collegiate approach which I do quite like. I have got to say that there are many instances of banter on the record between Mr Davis and I which involve give and take. In this instance he has in fact perhaps not metaphorically but quite literally sought to pour some water on the situation that I am facing over here with a scratchy throat.

What we do need to take account of, though, is that just because those opposite might wish to claim that the public interest applies in a situation that is convenient to their political narrative does not mean that it therefore becomes a sword by which—a privilege by which—the separation of powers and the orders of a Court of Appeal can be set aside. It does not follow that every time the opposition comes to this place with a documents motion and indeed says, ‘We would like to see this because it is in the public interest; therefore we want you to depart from well-established conventions and indeed doctrines that apply for the purposes of the system of separation of powers here in Victoria’, they should in fact just get them as a matter of course—that if they craft the argument with sufficient eloquence from across the way on the opposition benches they will in fact be justified in saying that they are entitled to the information.

Ms Lovell in her contribution said words to the effect of, ‘If you have nothing to hide, then it should not be an issue’. It is an interesting application of the onus of proof. It is one which again flies in the face of numerous contributions on the record from those in opposition when they were in government. Indeed it is always interesting to hear those opposite claim that in fact we should disclose everything just to put minds at ease. I have heard a fair few conspiracies like that, including one such example which referred to a former President of the United States just showing his birth certificate so that we could actually understand that there was nothing to hide.

Mr Davis: On a point of order, Deputy President, we may be going a bit far when we get to the birth certificates of United States presidents.

The DEPUTY PRESIDENT: I will bring the speaker back to the motion. Birth certificates of the presidents of the United States are outside the scope of this debate.

Ms SHING: On a new point of order, Deputy President, I am in a position to stand up and to make a contribution based on what a previous speaker has referred to, that being: if you have nothing to hide, then there should be nothing to fear. In that context I am well within my rights to stand here and to refer to the fact that this is dangerous reasoning, these are dangerous arguments and they are also arguments, to my mind, made by weak and indeed impotent reasoning that flies against—

The DEPUTY PRESIDENT: Sorry, are you debating now or are you still on your point of order?

Ms SHING: I will just continue my contribution and not pursue the point of order. I will just finish my contribution with the time I have available. We oppose this motion.

 Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (11:59): I will be very brief in my summing up and just make a number of clear points. This is part of a government cover-up, pure and simple, and that is actually very concerning. I think that there are serious matters of public policy. It is in the public interest that this government-commissioned report be released. The United Firefighters Union (UFU) and the government have gone to every length to stop this document being released. It is clearly very embarrassing. Ms Lovell put on record a number of key points about those who were consulted in the production of the document, those who gave evidence in the production of the document, and it is very clear that the document has actually taken testimony from people which would be embarrassing to the government.

Further, the charge that in some way this overrules the courts is not correct. The courts have a separate power, that is quite true. The chamber has a separate power quite distinct from the courts. The chamber is able to inquire into and look at documents much more broadly, and that was the point of the Bret Walker opinion in New South Wales and the earlier Bret Walker opinion that this chamber requested going back prior to 2010. I urge people to read that to see what the powers of the chamber actually are and on which they are founded. It is not about overruling the courts; this is about the chamber having a distinct and separate set of powers. Let me also be quite clear: the motion is actually very carefully framed, and if people read point (7), it says:

(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.

Be very clear here that if there is some genuine reason why the document ought not to be released to the chamber, there is a mechanism directly in the standing orders that is in place. An independent arbiter can be appointed. New South Wales has done this; they have done this for many years. Documents are provided to the arbiter, and the arbiter, who is an independent person and very respected by all sides of the Parliament, will often make decisions to say these documents should not be in the public domain or should not be released. And that could well apply here if this document is genuinely a document that should not be in the public domain. But the truth of the matter is the court has one view over there, and the chamber has a separate and distinct power to request this document. I say be very clear here: the document is important in my view, and the information I have heard and seen about these matters shows that it is a matter of significant public interest and significant public concern.

Ms Shing interjected.

Mr DAVIS: No, no, I am saying that people have spoken to me about the document, and they have actually made points to me about the document. Ms Lovell laid out a number of key points about the document and about the way the information was gathered from witnesses who have spoken. She has actually put some of those matters on the public record, and they are very significant points. And those people who in good faith gave evidence to the producers of the document actually want to see it released. They believe it should be released. They believe it is a breach of faith with them, who provided information. In truth, there is a real risk that in fact some of those who are subject to criticism in the document may actually have copies in their possession.

I think we have got to be very careful here and actually be very clear about what we are doing here. The chamber has the authority to demand this document. We should demand the document. We have clear precedents and clear information from New South Wales about a mechanism to do that. If the Attorney says she cannot obtain the document, the document can be obtained directly from the agency. Now, if the agency is of the view that the document should not be released, the standing orders actually have a clear mechanism for an independent arbiter which would enable that to occur and enable the agency to put its view to the arbiter. An independent arbiter could make that decision quite fairly and on the basis of information that is put to them.

I say this document should be in the public domain. I say the government is involved in a clear cover-up here. The government wants to do anything to stop this document coming into the public domain, the Premier wants to stop it coming into the public domain and the UFU wants to stop it coming into the public domain. It is important that it is released.

House divided on motion: