THE Victorian ombudsman says the government must repeal its anti-corruption laws or seek clarification of their constitutional validity in court, to ensure the state's integrity scheme remains effective.
Ombudsman George Brouwer first raised his concerns with the state's anti-corruption laws before they were passed by parliament in December last year. He said parts of the Integrity Accountability Legislation Amendment Act (IALAA) 2012 legislation were unconstitutional, because under the changes he could no longer be considered an independent officer of the parliament. However, his concerns were rejected by the government and solicitor-general.
Mr Brouwer sought further advice from a second Queen's Counsel and has reiterated his views in a new report tabled in parliament on Wednesday. He said he had provided the new advice to the government, but it was again rejected by Solicitor-General, Stephen McLeish.
"The consequences are serious if the legal advice provided to me are correct," Mr Brouwer says in his report. "The result of this invalidity is that all of the amendments purportedly made by the IALAA to more than forty Acts of Parliament ... will be ineffective. "That invalidity will fundamentally undermine the effectiveness of the new integrity scheme." Mr Brouwer says if challenged and found to be invalid, it could make Independent Broad-based Anti-Corruption Commission (IBAC) officers criminally liable for their actions.
Just last month, Auditor-General John Doyle raised his owns concerns about the laws, saying they were affecting his independence and effectiveness. Mr Brouwer says the issue could be overcome with remedial legislation to repeal the Act and replace it with valid, retrospective legislation consistent with the Constitution Act.
Alternatively, the government could seek a declaration from the Supreme Court as to the validity of the laws and the provisions it purports to add to various Acts. However, Mr Brouwer said the recommendations had again been rejected by Premier Denis Napthine.
"Given the consequences to the independence of my office and that of the auditor-general arising from the IALAA ... I have no option but to draw these matters to the attention of the parliament," he says.