On 28 January 2022, Accountability Round Table made a submission to Operation Watts, the coordinated investigation of Party misuse of public resources between IBAC and the Victorian Ombudsman. Our submission was directed to the questions raised by IBAC and the Victorian Ombudsman in their letter of invitation.

“The evidence heard at the recent IBAC Operation Watts public hearings suggests  that in Victoria, some Members of Parliament may be misusing public resources, in the form of electorate officers and ministerial staff, to further their political objectives.
The evidence further indicates that existing laws and rules around the legitimate use of public resources are not robust enough to prevent their misuse. This is despite a package of reforms enacted by Parliament in 2019 in response to the Ombudsman’s “Red Shirts” report in 2018.
While we have as yet made no individual findings in our investigation, we invite you to assist us in recommending proposals for reform”.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f7/Public_Purse_Melbourne.jpg/320px-Public_Purse_Melbourne.jpg

What follows is our response and our recommendations.

  1. Misuse and the norms of democracy.
  2. What resources are MPs accountable for?
  3. Data as an Electorate Resource.
  4. Factional domination
  5. Need for electorate office staffing allocation and electorate office budget to remain.
  6. General integrity principles
  7. Accountability for resources
  8. Professional Standards
  9. Specific Responses to IBAC & Ombudsman
  10. Conclusion

CONSOLIDATED RECOMMENDATIONS


ART SUBMISSION TO OPERATION WATTS.

Key Points Addressed

We understand that the key points on which you are seeking  views are:

  1. whether further legislative change is required to deter misuse of resources provided to MPs.
  2. on the electorate staff appointment process and the desirability of Parliament reducing its staffing allocation and electorate office budget to more appropriately reflect the needs of the role.
  3. how the frameworks for Parliamentary accountability could be strengthened, particularly in relation to breaches of the Members of Parliament Code of Conduct (Members of Parliament (Standards) Act 1978).
  4. how positive reforms may be instituted to meaningfully address these issues.

 

In this submission we also suggest it might be prudent to consider a wider definition of ‘resources provided to MPs’ beyond financial public resources. An example of this wider consideration is MPs’ use of public data not otherwise available to the public. Both money and data can be misused and wield considerable electoral power.

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Misuse and the norms of democracy.

Democracy is fragile; democratic practice is under serious threat, with a diminishing trust in Parliaments and political systems; corruption is taken as a given; and, voters are turning away from established parties. Citizens entrust great powers in politicians from policing to the use of their electorate allowances. Such powers are entrusted to further the public good and not the private interests of the politicians. Electorate resources are entrusted to politicians so that they can perform their roles as parliamentarians. If they perform those roles well, that increases their chances of being re-elected. However, they must not use those resources for other purposes. They should not be able to use those resources to directly increase their chances of re-election, the election of fellow candidates from their party or to further the interests of their faction.

The reforms being considered by IBAC are best understood as relating to both the legal structure and the norms of behaviour of the parliamentary institution and the MPs of which it is comprised, with the aim of changing behaviour in desired ways. In other words, the structures and norms should be understood as system, in which there are dynamic relationships and interactions between resolutions and legislation of the houses of parliament, referencing guidelines issued to MPs, the conduct of political parties, in relation to their demands on parliamentary members , as well as the behaviour of parliamentarians (individually and in aggregations including parliamentary political parties, committees, etc.), the media (traditional and social), public discourse, and other structures and norms.

This understanding leads ART to recognise that particular reforms so far presented are necessary but still not sufficient to change behaviour in the desired manner. In the context of Operation Watts, the evidence presented in public hearings confirms that provisions to date have clearly been inadequate to deter misuse by a minority of MPs. The evidence has also revealed a diversity of motivations and other factors associated with the misuse. Misuse of allowances for private, personal reasons led the Victorian Speaker and his Deputy to resign their positions in 2017 [1]

The fundamental principles of democracy rest on the idea that each citizen’s vote carries equal weight and that each constituent in an electorate or state is entitled to equal representation. Private interests and private funding should not distort this equality of equality of representation by “undue influence”. All opinions and  arguments are not of equal value (e.g., the efficacy of Covid vaccines)-their value must be tested through democratic processes. . Some of the most divisive issues in public life – vaccination, action on climate change, definitions of ‘freedom’, the history wars  – are linked to a strong rejection by some of evidence and expertise. That is mediated by elected MPs who, by virtue of their membership of parliament, are public officers who in turn must place the public interest ahead of personal, business or indeed political party interests.

Without engagement by MPs of the citizens, liberal democracy becomes a mockery. Deliberative democracy techniques are increasingly used to engage the community and enhance trust in government. Conversely, threats and violence are an anathema, whether emanating from MPs in factional contests or people protesting against policies.

So the primary problem presented by the letter becomes how to separate the legitimate use of publicly supplied funds and resources by MPs in their roles as public officers from their possible private use of such funds and resources, either as private individuals, or as member of political parties, which are by definition private organisations.

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What resources are MPs accountable for?

  1. Electoral Resources under the Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Act 2019 (Vic)

The resources for which MPs are accountable are subject to and/or provided for under the

  • Members of Parliament (Standards) Act 1968 (Vic),
  • Parliamentary Salaries, Allowances and Superannuation Act 1968 (Vic), and
  • Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Act 2019 (Vic).

The resources provided for are defined as follows:

resources, meaning the work-related parliamentary allowances and other funding, resources or facilities, including the Budget, provided for use by Members in the performance of their public duties;

work-related parliamentary allowances means the following allowances under the Parliamentary Salaries, Allowances and Superannuation Act 1968—

(a) a parliamentary accommodation sitting allowance (Tribunal Guidelines specify eligibility criteria for claiming the parliamentary accommodation sitting allowance. $26,609 – $53,217);

(b) a travel allowance;

(c) any other prescribed allowance.[2],[3]

Commercial Travel Allowance (Tribunal Guidelines specify eligibility criteria for claiming the commercial transport allowance $5000 to $17,226.) 

Electorate Allowance (varies from $40,690 to $48,744 according to the geographic size of the electorate)

Electorate Office and Communications Budget (to fund the operating costs and maintenance of their electorate office; electorate officer expenses and associated on-costs and communicate with their electorate in relation to the performance of their public duties; the sum varies according to the number of enrolled voters in Member’s electorate – average approximately $105,000)

International travel allowance ($10,080 per year)

Motor Vehicle Allowance (a Member may elect to be provided with a motor vehicle or to claim an allowance of $20,000 [5,000 km2] or $30,000 [0ver 5,000 km2])

Most obviously, resources include each MP’s electorate office rented, fitted out and maintained by the Parliament, office staff (i.e., Electorate Officers) and a motor vehicle.[4]

The details of accountability for these resources are presently set out in the Members of Parliament (Victoria) Guidelines No. 01/2021 (Effective 1 May 2021) [5] The Guidelines provide that:

  1. A Member must be responsible and accountable for their use of public resources.
  2. A Member must be prepared for their claims to be made publicly available.
  3. A Member must be able to publicly justify their use of public resources.[6]

In other words, the primary modes of present control include:

  • Transparency to the public, which is a democratically necessary, but insufficient protection against misuse.
  • The provisions for desirable behaviour set out in the Members of Parliament (Victoria) Guidelines No. 01/2021

A series of sanctions are provided for in the Members of Parliament (Standards) Act 1968 (Vic). These cascade from a requirement to apologise, to expulsion from the Parliament.

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Data as an Electorate Resource.

Conditions for use of data as a resource.

Data has become either the new oil or the new gold depending on your source of metaphor. Both expressions point to the fact that its power in advantaging the user with the most of it in elections in particular, matches or outweighs the power of money. Data is open to misuse in its collection, its processing and aggregation, its passing on to others for money or for political advantage and in its direct electorate use. Yet there is no commonly understood requirement, as there is for funds, to keep private and public use separate, or to publicly account for any or all of the above transactions.

Victorian MPs use and have privileged access to electoral data.  Public data on the Victorian electoral roll is provided to MPs through the provisions of the Victorian Electoral Act 2002. [7] This is not simply an allowance for provision of enrollment information to political parties, members and candidates, it is mandatory that the Victorian Electoral Commission (VEC)  provides this information to parties, MPs and candidates.

In addition, the Privacy and Data Protection Act 2014 (Vic) exempts MPs. [8]

  1. 13 (1) Subject to subsection (2), this Part applies to the following—

(points (a) to (f) omitted)

(g) a person holding an office or position established by or under an Act (other than the office of member of the Parliament of Victoria) or to which the person was appointed by the Governor in Council, or by a Minister, otherwise than under an Act;

Nothing in Section 9 of the Members of Parliament (Victoria) Guidelines “Prohibitions on party political activity” prevents MPs from using public money to buy a licence for a campaign database or to buy third party data to add to it i.e., for the purpose of political campaigning

The power of these databases is that they allow extremely sophisticated information and behaviour modelling to be done on voters.

The claim of the commercial political database “i360” for its powers is a case in point. Its own website states:

i360’s comprehensive data is a unique combination of hard data points and predictive modelling. Our dataset incorporates extensive political identification, coalition and membership information collected by way of in-person, phone and online surveys, as well as through partner relationships in addition to lifestyle and consumer data collected from multiple top-tier providers. Our data is further enhanced by our suite of predictive models, filling in gaps and helping us build the most complete profile for every individual possible.” [9]

i360 was reportedly purchased by the Victorian Division of the Liberal Party in 2018. [10]  It is not known whether it was used in association with data collection and database management that formed a part of the legitimate activities of any MP in their role carrying out “electoral business” or even “ministerial business”. These public duties are defined to:

include committee business, electorate business, Ministerial business and parliamentary business. Those four types of business are not further defined in the Act.[11]

The question that this raises is whether public resources (e.g., a database provided to MPs under the exemption provided in the Privacy and Data Protection Act 2014 (Vic), to execute their public duties) are used for public purposes or to the benefit of the MP’s political party or indeed the personal interests of individual MPs?

And does any of it in any case even fit the concept of “Communication materials” which are subject to the constraints of Section 9 of the Members of Parliament (Victoria) Guidelines?

Indeed, the data and even the existence of the data bases are not easily revealed to the public. They tend to remain close-held inner circle information. Their use is to feed information to politicians about the electorate, not from politicians to the electorate.

MPs and registered candidates have access to the electoral roll, and data provided to them by virtue of cold calling allowed by their exemption from the do not call register, and their capacity to data match electoral roll addresses with Sensis data phone numbers of voters. These public exceptions provide an El Dorado of data that may be fed straight to party databases and further matched with third party data bought in to be used for electioneering purposes. Is any of this misuse of electoral resources? There is no way to clearly know.

Mandatory access to Electoral Roll information and exemption from the Privacy and Data Protection Act 2014 for MPs confers on them the same constraints to separate constituency use of data from Party use of data as does the public provision of electoral office allowances for separation of constituency spending from election spending.

Recommendation 1. The Office of the Victorian Information Commissioner (OVIC) should be requested to conduct audits to assess MPs’ compliance with the Information Privacy Principles (IPPs) and recommend provisions for the use by MPs of digital and data resources currently subject to the exemption provided for in the Privacy and Data Protection Act 2014 (Vic).

Recommendation 2. Standards for legitimate use based on the recommendations of this investigation should be clearly set out in the Members of Parliament (Victoria) Guidelines.[12]

Recommendation 3.  The matter of purchase of data or purchase of access to databases enabling sophisticated profiling of voters should also be a matter for IBAC investigation with a view to determining what data or data purchase arrangements exactly are transacted between parties and MPs, and what limits should be set on MPs’ capacity to scrutinise and keep data on the lives, activities and beliefs of their constituents.

Recommendation 4. The Guidelines should clearly identify sanctions (i.e., penalties) for misuse, cross referenced to the provisions of the Act (S 31 Members of Parliament (Standards) Act 1968 (Vic)).

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Factional domination

The reality of the effects of intra-party factions must be given stronger recognition in the analysis of the matters under investigation.

In respect of electorate office staff, the letter (of invitation to make a submission) notes that the reformed provisions

… prohibit Members from determining that an electorate officer can, should or must perform any “party specific activity”, which is defined as meaning an activity that directs how persons ought to vote at an election (i.e., campaigning or electioneering activities).

Significantly, the legislature avoided adopting the expansive definition of “party specific” included in the Member’s Guide as of 20 November 2018, as a response to the Red Shirts report, announced by Parliament’s Speaker and President which had relevantly included the “administration, organisation or management of a political party… such as managing the party’s membership, communications, funds or property” as well as “campaigning or electioneering activities.”

Despite the reforms, evidence demonstrates that these limited reforms have not deterred the continued deployment of public resources by Members for purposes unrelated to their public duties. Members of Parliament gave evidence of their belief that Parliament deliberately omitted reference to the wider definition of “party specific” work, to permit the use of electorate officers to engage in some party-political activities during work hours.

The Guidelines are much more restrictive than that evidence suggests. They state:

Use of the EO&C Budget must comply with the overarching obligations in the PSAS Act, as well as the prohibition on party political activity, and prohibition on commercial use and personal use, as set out in this Part of the Guidelines. (p. 11)

A comprehensive list of electorate business is provided (p. 9).

(a) any of the following activities relating to matters of importance or interest to constituents (including matters that do not relate exclusively to constituents, such as matters of state importance):

(i) providing advice or information to constituents;

(ii) attending a meeting with constituents;

(iii) undertaking research;

(b) representing the views and interests of constituents;

(c) participation in official and community activities to which the Member is invited;

(d) providing constituent assistance and service.

This is followed by an extensive, detailed list under the heading “Prohibitions on party political activity” (p. 12).

The contrast between the evidence of a small number of MPs and the actual Guidelines confirms the strong role played by the culture – norms of behaviour – in interpreting and applying rules with or without a statutory basis (e.g., an Act; Members’ Guide).

However, the evidence from IBAC’s public hearings demonstrated that factions and factionalism, in particular competition between factions and factional leaders, has been the driving force behind the improper, unethical and seemingly illegal use of electorate resources. This has been enabled to persist by the concentration of power in the control of domineering groups and leaders and the marginalisation of rank and file party members. Countering this requires party members to be able to rely on the support of independent authorities such as the courts.

Recommendation 5. That legislation establish the right of members to turn to civil courts to enforce their rights according to the rules of their political party or other organisation.

The major impact of political party decision-making is in pre-selection contests for election to parliament. It is these contests that political party rules are manipulated and deals between factions are done that deny party members any role. The integrity of internal elections in organisations such as trade unions is ensured by them being conducted by the Electoral Commission.  As political parties have such a central role in the system of government, it is necessary that they operate in a more comprehensive legal environment than other private organisations whose operations are of lesser impact e.g., trade unions.

Recommendation 6. That legislation require political parties to have pre-selections for elections for public office conducted by the Victorian Electoral Commission

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Need for electorate office staffing allocation and electorate office budget to remain.

ART notes the letter’s reservations concerning the staffing levels in electorate offices and the generalisation inferred from the comments of a small number of witnesses:-

(F)ully staffed electorate offices were largely idle for significant periods of time, bereft of legitimate constituent enquiries or public engagement.

ART members (includes former MPs) have had contrary experience. Well organised electorate offices take a leadership role in which they are actively involved in seeking to redress grievances within their constituency and in some cases the wider community. Often a grievance brought by one person exposes a problem of much wider significance, for example in the disability and mental health areas. These grievances may involve assisting a resident to apply for public housing; electorate matters (e.g., renovation of a school building, child abuse or drug addiction issues); Victorian State issues (e.g., state environment policy) or national problems with implications for Victoria (e.g., pandemic measures).

Furthermore, community engagement is increasingly recognised as a (partial) counter to the alienation and dissolution felt by many, and as leading to greater trust in government.

Diminution or removal of the capacity of the ability for constituents to make personal contact with their MP through phone calls or visits is an attack on the very basis of the relationship between the represented and their representatives. Alienation from the political process comes at least in part from impersonal hyper-managed campaigning substituting for relationships that advance discussion and negotiation.  Personal access to MPs should not be the privilege only of the powerful.

Rather than reduce the level of constituency service provided by busy Members and their staff, ART recommends that Members and their staff be trained and support in community engagement and leadership.

In addition to MP training and encouraging MPs in their efforts to engage with constituents, there should be reciprocal encouragement to constituents to engage with their MPs. A public campaign encouraging people to speak personally to their MP no matter whether they voted for them can only assist in engendering a sense of belonging in a democracy.

Electorate Officers can and do provide MPs with valuable research and writing support on matters coming before parliament and in the public domain.

Recommendation 7. Staffing and resourcing should be maintained at at least current levels in order to maintain the level of constituency service provided by busy Members and their staff, which are essential to the relationship between MPs and constituents in a democracy.

Recommendation 8. That induction, training and continuing professional development be provided for MPs, their staff (including casual staff), including in community engagement

Recommendation 9. Encouragement, training and support in community engagement and leadership should be provided to assist citizens and non-government organisations engage with parliament and MPs.

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General integrity principles

ART focuses on the accountability for the use of resources provided by the State of Victoria rather than the secondary detail of particular allowances.

The accountability of MPs relies on the Public Trust Principle and their consequential status as public officers, according to which each must put the public interest ahead of other interests such as personal, business and political party interests. Our argument and recommendations rest on this fundamental principle i.e., that the individual MP must be able to demonstrate that she or he has used resources provided in a manner consistent with the Public Trust Principle.

The principle underpins the recommendations of the Commonwealth Parliamentary Association (CPA), [13] which include:

  1. Parliamentary Integrity Adviser (in Victoria this is provided for in a resolution of the two Houses that authorised the Speaker and President to the establish the position; The Adviser provides advice, education & training but does not investigate allegations).
  2. Parliamentary Commissioner (investigates & may report upon allegations of misconduct; is empowered to refer directly to IBAC; the Members of Parliament (Standards) Act (Vic) provides “A Presiding Officer who receives a referral under subsection (1) must determine whether to refer the alleged contravention to the relevant Privileges Committee”. Privileges Committees have a patchy record in investigating and penalising alleged breaches. That culture needs reform supportive of an environment of ethical conduct).

The Victorian Compliance Officer performs a similar function to a Parliamentary Commissioner as described by the CPA.

Our following recommendations are a complementary mix of cultural and legal reforms.

The practical potential of this mix is illustrated by events in both Houses at Westminster. The House of Lords practice has become to adopt reports and recommendations of investigations of breaches not-with-standing the political associations of the MP under investigation.

A similar strong culture in the House of Commons (UK) was illustrated last November (2021) after the Standards Committee found a Conservative MP to have breached the lobbying rules. A revolt against the Johnston Government forced it to withdraw support from the MP, who subsequently resigned from the House.

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Accountability for Resources

MPs must be responsible to the Parliament as a whole, and be required to regularly  report on staff recruitment and the use of resources for which the member is responsible and where there is at least the potential for open debate on the floor of the chamber.

Australia is a member of the Open Government Partnership (OGP).[14] Openness of MPs’ use of public resources would be a valuable application of Australia’s commitments to OGP principles.

Such a requirement has the potential to have a strong influence on the culture affecting MPs’ use of public resources.

On the particular matter of accountability for the use of resources, the Auditor General (VAGO), already an Independent Officer of the Parliament, performs this function in respect of other offices and so is appropriate to do so in respect of MPs.

Accordingly, ART recommends that:

Recommendation 10. Appointment of Parliamentary staffers and Ministerial advisors should be an open process reflecting that it involves the use of public money. It must especially not be the gift of the MP’s political party, or a faction, or the personal advantage of individual MPs, such as securing re-endorsement. Vacancies should be advertised publicly with details including skills and qualifications required, duties, experience, selection criteria; the MP should confirm that the appointee met the selection criteria; and appointments should be disclosed on the MP’s website.

Recommendation 11  Every MP should be required to publish an audited annual report of the expenditure of electorate resources provided by the Parliament, (i.e., the Electorate Office and Communications Budget of a Member, Electorate Allowance and other items) to be tabled in the House and on the MP’s parliamentary website for the period of each financial year or part thereof (i.e., that part of the financial year until the expiration of the Parliament – and that part of the financial year following the declaration of an electoral poll.)

Recommendation 12. The Auditor-General, Ombudsperson and IBAC should be explicitly authorised to comment and make recommendations on MP’s annual reports.

Recommendation 13. An annual report of the Electorate Office and Communications Budget and other resources should be liable to random external audit under the authority of the Victorian Auditor-General’s Office (VAGO).

Recommendation 14. To remove legal doubt, the above requirements should be provided for in an Act.

ART is concerned by the provision that “Members will not be required to register official hospitality, which is hospitality received as part of the regular and expected duties of a member of Parliament”.[15] The provision may expose an MP to accusations that she or he has met secretly and exposed themselves to improper dealings. ART recommends that the provision be reconsidered.

Recommendation 15. Members register of interests be required to include official hospitality i.e., hospitality received as part of the regular and expected duties of a member of Parliament.

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Professional Standards

A crucial feature of the culture of any organisation is the enculturation of its members through induction, training, continuing professional development and like activities for personnel from the most senior (and powerful) to the most junior. Power differentials are particularly acute in parliaments and dominated by partisan leaders who often seek to prevail over at least one if not both Houses.

Political pressures tend to suppress opportunities for parliamentary induction, training, continuing professional development in favour of pursuing partisan goals.

Recommendation 16. That the Parliament be resourced to provide induction, training, continuing professional development, which should include:

  • Guidance (online & hardcopy) on management of electorate resources be provided to every MP by the Parliament
  • The ethics adviser sitting down with each MP individually at least annually to assist them deal with any assets or offices held that raise potential conflicts of interest. (This is an extremely good way to learn – one on one, dealing with something that has to be done.)
  • At least annual seminars etc dealing with ethical dilemmas, orientated to Members and/or staff, on Sitting Days
  • Ethical dilemmas should be presented (on smart phones) as online vignettes (refreshed frequently) for MPs to view at their convenience, to provide enhanced continuing professional development of ethical conduct.
  • Mandatory training for electorate staff (casual and long-term staff)
  • Training and support in community engagement and leadership (for Members and staff)
  • Programme & publications for political candidates and other interested individuals.

While these functions can be performed by a range of parliamentary officials, it is particularly valuable if they can be performed by staff from the parliamentary integrity advisor. The MP or staffer can ask questions directly and understand the ethics advisor’s office to be the place from which they can secure advice confidentially.

The Act provides for a wide progression of penalties where a breach has been found, ranging from an apology to the House to expulsion from the House.

ART recommends that the current penalties be cross-referenced in the Guidelines and that the culture encourage support for their use in a non-partisan manner.

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Specific Responses to IBAC & Ombudsman

Beyond the argument and recommendations above, ART comments as follows specifically on particular matters on which ART’s views have been sought:

Whether further legislative change is required to deter misuse of resources provided to MPs.

  • Appointment of Parliamentary staffers and Ministerial advisors should be an open process reflecting that it involves the use of public money. It must especially not be the gift of the MP’s political party, or a faction, or the personal advantage of individual MPs, such as securing re-endorsement. Vacancies should be advertised publicly with details including skills and qualifications required, duties, full or part-time and selection criteria; the MP should confirm that the appointee met the selection criteria; and appointments should be disclosed on the MP’s website.
  • Every MP should be required to publish an audited annual report of the expenditure of electorate resources provided by the Parliament, (i.e., the Electorate Office and Communications Budget of a Member, Electorate Allowance and other items) on her/his parliamentary website for the period of each financial year or part thereof (e.g., that part of the financial year until the expiration of the Parliament – approximately 31st October).
  • Members register of interests be required to include official hospitality (hospitality received as part of the regular and expected duties of a member of Parliament)
  • The annual report should be liable to random external audit under the direction of VAGO.
  • To remove legal doubt, the above requirements should be provided for in an Act.

The electorate staff appointment process and the desirability of Parliament reducing its staffing allocation and electorate office budget to more appropriately reflect the needs of the role.

  • Staffing and resourcing should be maintained at at least current levels in order to maintain the level of constituency service provided by busy Members and their staff, which are essential to the relationship between MPs and constituents in a democracy.
  • MPs and electorate officers should focus on providing high levels of service and leadership to their constituents and more generally the Victorian community, so as to enhance the responsiveness of and trust in the system of government.
  • ART recommends that Members and their staff be inducted, trained and supported with continuing professional development including community engagement and leadership.

Strengthening the frameworks for Parliamentary accountability, particularly in relation to breaches of the Members of Parliament Code of Conduct (Members of Parliament (Standards) Act 1978).

  • Strengthening the frameworks for Parliamentary accountability should include complementary cultural and structural measures as recommended by the CPA, including:
  1. Parliamentary Integrity Adviser (provides advice, education & training but does not investigate allegations).
  2. Parliamentary Commissioner (investigates & may report upon allegations of misconduct; is empowered to refer directly to IBAC; “A Presiding Officer who receives a referral under subsection (1) must determine whether to refer the alleged contravention to the relevant Privileges Committee”).
  3. Every MP should be required to publish an audited annual report of the expenditure of electorate resources provided by the Parliament (see Recommendation 2 above.)

How positive reforms may be instituted to meaningfully address these issues.

  • A diverse range of complementary reforms must be brought together and adopted. These reforms should include:
  1. a legislative mandate requiring each Member to report openly, transparently and annually on their use of resources provided to them by the state in the performance of their public duties (see Recommendation 2 above.)
  2. induction, training, seminars and innovative continuing professional development including in community engagement and leadership
  3. the right of members of political parties to turn to civil courts to enforce their party membership rights should be established by legislation (see Recommendation 9)

Whether further legislative change is required to deter misuse of resources provided to MPs.

  • A legislative mandate is required providing that each Member report annually, openly, and transparently on their use of public resources .
  • Legislation should establish the right of members to turn to civil courts to enforce their rights under the rules of a political party or other organisation that endorses candidates for election to the Victorian Parliament or a Victorian local government council, not-with-standing any organisational rules to the contrary, subject to members first making reasonable efforts to have their rights recognised within the organisation before turning to the courts.
  • Legislation should require political parties to have pre-selections of candidates for elections for public office conducted by the Victorian Electoral Commission.(VEC), which would apply the rules of the respective political party, with integrity. Party members could nominate according to their party’s rules and face selection by party members in accordance with the party’s rules.

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Conclusion

Operation Watts is investigating systemic features affecting the misuse of constitutional powers and public resources. These misuses cannot be fully explained or resolved by legal structures and powers alone but must take into account normative factors – the manner in which the personnel and organisations behave and interact with each other and with the legal structures – the legal infrastructure. Together, these form a dynamic system in which its elements are in constant tension and interaction, changing each other and the system itself.

This Response has drawn attention to the extensive range of interactive elements that affect the use and misuse of public funds and powers. The Response cites argument and evidence ranging from Westminster to local examples. This analysis forms the basis of recommended reforms intended to constrain tendencies to misuse and encourage integrity in exercising public powers and using public resources, supported by limited legislated reforms.

This systematic approach and adoption of the recommended reforms has strong potential to curb misuse and enhance integrity in Victoria’s parliamentary system.

[1] A systems approach that understands electorate offices and their staff as a subsystem of the parliamentary system is to apply Systems Thinking in Practice (STiP). For further reading, see Ray Ison and Ed Straw(2020) The Hidden Power of Systems Thinking Routledge. ISBN 9781138493995

[2] No other prescribed allowance has been identified.

[3] Excerpt from S. 2, Members of Parliament (Standards) Act 1978.

[4] See Parliamentary Salaries, Allowances and Superannuation Regulations 2019; Parliamentary Salaries, Allowances and Superannuation (Provision of Motor Vehicles) Regulations 2019; Members of Parliament (Victoria) Determination 01/2019 [varied by [2020] DMPA 01 and [2021] DMPA 01])

[5] Members of Parliament (Victoria) Guidelines No. 01/2021 (Effective 1 May 2021)

[6] Members of Parliament (Victoria) Guidelines No. 01/2021 (Effective 1 May 2021) p. 6.

[7] Electoral Act 2002 (Vic). Division 3—Enrolment information Section  33  Provision of enrolment information to political parties, members and candidates.

[8] See Privacy and Data Protection Act 2014. Part 3—Information privacy Division 1—Application of this Part. Section 13 (1) Public sector organisations to which this Part applies.

[9] The i360 Database. (2022) Available from https://www.i-360.com/the-database/

[10] Julia Thornton (2018) Big data is an unguarded corner of democracy. The Age 22 September 2018. Available from https://www.theage.com.au/politics/victoria/big-data-is-an-unguarded-corner-of-democracy-20180917-p5047j.html

[11] Members of Parliament (Victoria) Guidelines No. 01/2021 Part C  – Public duties of a Member 7  Meaning of public duties (2) & (3)

[12] Members of Parliament (Victoria) Guidelines No. 01/2021

[13] Ken Coghill, Cristina Neesham and Abel Kinyondo (2015) Recommended Benchmarks for Codes of Conduct applying to Members of Parliament. Commonwealth Parliamentary Association

[14] Open Government Partnership – Australia. Available from https://ogpau.pmc.gov.au/

[15] 2nd Reading Speech Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards bill 13th December 2017.

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CONSOLIDATED RECOMMENDATIONS

Recommendation 1. The Office of the Victorian Information Commissioner (OVIC) should be requested to conduct audits to assess MPs’ compliance with the Information Privacy Principles (IPPs) and recommend provisions for the use by MPs of digital and data resources currently subject to the exemption provided for in the Privacy and Data Protection Act 2014 (Vic).

Recommendation 2. Standards for legitimate use based on the recommendations of this investigation should be clearly set out in the Members of Parliament (Victoria) Guidelines.

Recommendation 3. The matter of purchase of data or purchase of access to databases enabling sophisticated profiling of voters should also be a matter for IBAC investigation with a view to determining what data or data purchase arrangements exactly are transacted between parties and MPs, and what limits should be set on MPs’ capacity to scrutinise and keep data on the lives, activities and beliefs of their constituents.

Recommendation 4. The Guidelines should clearly identify sanctions (i.e., penalties) for misuse, cross referenced to the provisions of the Act (S 31 Members of Parliament (Standards) Act 1968 (Vic)).

Recommendation 5. That legislation establish the right of members to turn to civil courts to enforce their rights according to the rules of their political party or other organisation.
The major impact of political party decision-making is in pre-selection contests for election to parliament. It is these contests that political party rules are manipulated and deals between factions are done that deny party members any role. The integrity of internal elections in organisations such as trade unions is ensured by them being conducted by the Electoral Commission. As political parties have such a central role in the system of government, it is necessary that they operate in a more comprehensive legal environment than other private organisations whose operations are of lesser impact e.g., trade unions.

Recommendation 6. That legislation require political parties to have pre-selections for elections for public office conducted by the Victorian Electoral Commission

Recommendation 7. Staffing and resourcing should be maintained at at least current levels in order to maintain the level of constituency service provided by busy Members and their staff, which are essential to the relationship between MPs and constituents in a democracy.

Recommendation 8. That induction, training and continuing professional development be provided for MPs, their staff (including casual staff), including in community engagement

Recommendation 9. Encouragement, training and support in community engagement and leadership should be provided to assist citizens and non-government organisations engage with parliament and MPs.

Recommendation 10. Appointment of Parliamentary staffers and Ministerial advisors should be an open process reflecting that it involves the use of public money. It must especially not be the gift of the MP’s political party, or a faction, or the personal advantage of individual MPs, such as securing re-endorsement. Vacancies should be advertised publicly with details including skills and qualifications required, duties, experience, selection criteria; the MP should confirm that the appointee met the selection criteria; and appointments should be disclosed on the MP’s website.

Recommendation 11 Every MP should be required to publish an audited annual report of the expenditure of electorate resources provided by the Parliament, (i.e., the Electorate Office and Communications Budget of a Member, Electorate Allowance and other items) to be tabled in the House and on the MP’s parliamentary website for the period of each financial year or part thereof (i.e., that part of the financial year until the expiration of the Parliament – and that part of the financial year following the declaration of an electoral poll.)

Recommendation 12. The Auditor-General, Ombudsperson and IBAC should be explicitly authorised to comment and make recommendations on MP’s annual reports.

Recommendation 13. An annual report of the Electorate Office and Communications Budget and other resources should be liable to random external audit under the authority of the Victorian Auditor-General’s Office (VAGO).

Recommendation 14. To remove legal doubt, the above requirements should be provided for in an Act.
ART is concerned by the provision that “Members will not be required to register official hospitality, which is hospitality received as part of the regular and expected duties of a member of Parliament”. The provision may expose an MP to accusations that she or he has met secretly and exposed themselves to improper dealings. ART recommends that the provision be reconsidered.

Recommendation 15. Members register of interests be required to include official hospitality i.e., hospitality received as part of the regular and expected duties of a member of Parliament.

Recommendation 16. That the Parliament be resourced to provide induction, training, continuing professional development, which should include:
Guidance (online & hardcopy) on management of electorate resources be provided to every MP by the Parliament
• The ethics adviser sitting down with each MP individually at least annually to assist them deal with any assets or offices held that raise potential conflicts of interest. (This is an extremely good way to learn – one on one, dealing with something that has to be done.)
• At least annual seminars etc dealing with ethical dilemmas, orientated to Members and/or staff, on Sitting Days
Ethical dilemmas should be presented (on smart phones) as online vignettes (refreshed frequently) for MPs to view at their convenience, to provide enhanced continuing professional development of ethical conduct.
Mandatory training for electorate staff (casual and long-term staff)
Training and support in community engagement and leadership (for Members and staff)
Programme & publications for political candidates and other interested individuals.

While these functions can be performed by a range of parliamentary officials, it is particularly valuable if they can be performed by staff from the parliamentary integrity advisor. The MP or staffer can ask questions directly and understand the ethics advisor’s office to be the place from which they can secure advice confidentially.

The Act provides for a wide progression of penalties where a breach has been found, ranging from an apology to the House to expulsion from the House.
ART recommends that the current penalties be cross-referenced in the Guidelines and that the culture encourage support for their use in a non-partisan manner.

Specific Responses to IBAC & Ombudsman
Beyond the argument and recommendations above, ART comments as follows specifically on particular matters on which ART’s views have been sought:
Whether further legislative change is required to deter misuse of resources provided to MPs.

Recommendation. Appointment of Parliamentary staffers and Ministerial advisors should be an open process reflecting that it involves the use of public money. It must especially not be the gift of the MP’s political party, or a faction, or the personal advantage of individual MPs, such as securing re-endorsement. Vacancies should be advertised publicly with details including skills and qualifications required, duties, full or part-time and selection criteria; the MP should confirm that the appointee met the selection criteria; and appointments should be disclosed on the MP’s website

Recommendation. Every MP should be required to publish an audited annual report of the expenditure of electorate resources provided by the Parliament, (i.e., the Electorate Office and Communications Budget of a Member, Electorate Allowance and other items) on her/his parliamentary website for the period of each financial year or part thereof (e.g., that part of the financial year until the expiration of the Parliament – approximately 31st October).

Recommendation. Members register of interests be required to include official hospitality (hospitality received as part of the regular and expected duties of a member of Parliament)

Recommendation. The annual report should be liable to random external audit under the direction of VAGO.

Recommendation. To remove legal doubt, the above requirements should be provided for in an Act.
The electorate staff appointment process and the desirability of Parliament reducing its staffing allocation and electorate office budget to more appropriately reflect the needs of the role.

Recommendation. Staffing and resourcing should be maintained at at least current levels in order to maintain the level of constituency service provided by busy Members and their staff, which are essential to the relationship between MPs and constituents in a democracy.

Recommendation. MPs and electorate officers should focus on providing high levels of service and leadership to their constituents and more generally the Victorian community, so as to enhance the responsiveness of and trust in the system of government.

Recommendation. ART recommends that Members and their staff be inducted, trained and supported with continuing professional development including community engagement and leadership.

Strengthening the frameworks for Parliamentary accountability, particularly in relation to breaches of the Members of Parliament Code of Conduct (Members of Parliament (Standards) Act 1978).

Recommendation. Strengthening the frameworks for Parliamentary accountability should include complementary cultural and structural measures as recommended by the CPA, including:
a. Parliamentary Integrity Adviser (provides advice, education & training but does not investigate allegations).
b. Parliamentary Commissioner (investigates & may report upon allegations of misconduct; is empowered to refer directly to IBAC; “A Presiding Officer who receives a referral under subsection (1) must determine whether to refer the alleged contravention to the relevant Privileges Committee”).
c. Every MP should be required to publish an audited annual report of the expenditure of electorate resources provided by the Parliament (see Recommendation 2 above.)
How positive reforms may be instituted to meaningfully address these issues.

Recommendation. A diverse range of complementary reforms must be brought together and adopted. These reforms should include:
a. a legislative mandate requiring each Member to report openly, transparently and annually on their use of resources provided to them by the state in the performance of their public duties (see Recommendation 2 above.)
b. induction, training, seminars and innovative continuing professional development including in community engagement and leadership
c. the right of members of political parties to turn to civil courts to enforce their party membership rights should be established by legislation (see Recommendation 9)
Whether further legislative change is required to deter misuse of resources provided to MPs

Recommendation. A legislative mandate is required providing that each Member report annually, openly, and transparently on their use of public resources .

Recommendation. Legislation should establish the right of members to turn to civil courts to enforce their rights under the rules of a political party or other organisation that endorses candidates for election to the Victorian Parliament or a Victorian local government council, not-with-standing any organisational rules to the contrary, subject to members first making reasonable efforts to have their rights recognised within the organisation before turning to the courts.

Recommendation. Legislation should require political parties to have pre-selections of candidates for elections for public office conducted by the Victorian Electoral Commission.(VEC), which would apply the rules of the respective political party, with integrity. Party members could nominate according to their party’s rules and face selection by party members in accordance with the party’s rules.


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