Review of Victoria's integrity and anti-corruption system - IPAA Victoria

• summonses have been routinely issued to witnesses for all manner of investigations, whichcauses stress for those in receipt of summonses who cannot discuss their circumstanceswith their employer or family;• witnesses are shown only the parts of draft reports that relate to them and are therefore notshown the broader context of these reports; and• witnesses are unsure whether requirements not to discuss their involvement in aninvestigation continue to apply indefinitely, even when the investigation has been finalised anda report is tabled in Parliament.In contrast, the Ombudsman submits that:• observations asserting a lack of procedural fairness tend to come from those who have hadadverse findings made against them and seek to undermine the Office;• he is required to give individuals an opportunity to present their views on adverse comments,which he does by providing a copy of the draft adverse comments and the context of thosecomments;• where he determines to retain the adverse comments, he is required to fairly set forth theindividual’s defence in his report; and• he allows witnesses to be accompanied by lawyers unless there is a conflict of interest or it isnot otherwise in the public interest and that every witness who has sought legalrepresentation over the past five years has been granted legal representation during aninterview. 29The Review notes that in a February 2010 report on Ombudsman’s Recommendations, theOmbudsman writes:Individuals named in my reports are given the opportunity to provide a response which isthen reflected in my report. I may also allow individuals to be legally represented. Mypractice is to allow witnesses to have legal representation when requested provided thelegal representative does not have any interest in the matter investigated and does notrepresent any other person or body which has any interest in that matter.My reports to Parliament speak for themselves and are backed up in detail by the evidencewhich is set out in each report and which forms the basis for my recommendations.Attempts are made from time-to-time by people or associations with vested interest whohave been found out, to attack and undermine the office or its investigators. This is notsurprising and is experienced by bodies worldwide. My ability to report to the Parliament asa whole is an effective safeguard against any such attempts. 30The Ombudsman Act is silent on how procedural fairness is to be afforded in either complaintsbasedor own motion investigations. However, the Ombudsman currently publishes guidelines onhis website on the role and processes of his Office. The Review considers that the OmbudsmanAct should be modernised to ensure the rights of people involved in investigations – both citizensand public officials – are explicitly enshrined in legislation. Principles of procedural fairness thatshould apply to Ombudsman investigations are outlined in Box 3.29Ombudsman submission (1b), p.16.30Ombudsman Victoria 2010, Ombudsman’s recommendations – Report on their implementation, Ombudsman Victoria,Melbourne.16 | Review of Victoria’s integrity and anti-corruption system