‘I have no choice’: Ombudsman warns of being ‘weaponised’ by MPs

EXCLUSIVE: The state’s Ombudsman says his office could be “weaponised” by politicians seeking to sideline rivals, after he was ordered by a parliamentary committee to undertake a conflict of interest inquiry into former Deputy Premier Vickie Chapman – whom he later cleared.

Aug 18, 2022, updated Aug 18, 2022
SA Ombudsman Wayne Lines and former Deputy Premier Vickie Chapman. Photos: Tony Lewis/Indaily | Image: Tom Aldahn/InDaily

SA Ombudsman Wayne Lines and former Deputy Premier Vickie Chapman. Photos: Tony Lewis/Indaily | Image: Tom Aldahn/InDaily

During a speech to the Australian Institute of Administrative Law earlier this week, Ombudsman Wayne Lines questioned whether a parliamentary committee should have ordered him to investigate Chapman’s conduct in refusing a timber port on Kangaroo Island – an inquiry which resulted in Lines controversially clearing her.

Lines called for a review of the legislation which underpins his role, saying the current laws force him to investigate a matter if it falls within his remit and is referred to him by parliament or a parliamentary committee – irrespective of whether he believes an inquiry to be in the public’s interest.

According to the Ombudsman Act, Lines “must carry out an investigation into any matter referred to him” by parliament or a parliamentary committee if it falls within his jurisdiction.

“My concern is that there is a potential now for the Ombudsman to be weaponised,” he said on Tuesday.

“If you get the right numbers within the committee or within the house, then you can refer an allegation against a minister to an Ombudsman and basically sideline that minister for the duration of the Ombudsman’s investigation.

“They’re under that cloud of what is the Ombudsman going to conclude about the allegation?

“That’s essentially what happened with Ms Chapman – she was sidelined.”

It comes after a parliamentary select committee last year requested that Lines investigate whether Chapman – in her role as then planning minister – had conflicts of interest when she rejected Kangaroo Island Plantation Timbers’ application to build a $40 million port at Smith Bay, near one of her landholdings.

The committee, which was spearheaded by the then Labor opposition, had already found that Chapman had conflicts of interest when she made the decision – sparking an historic vote of no confidence and Chapman standing down as deputy premier and attorney-general.

She was subject to parliamentary discipline. In my view, that should have been left there

But Lines asserted that legislative changes which passed swiftly and unanimously through parliament last year meant the parliamentary committee could also request an Ombudsman’s investigation.

“For the very first time parliament is now able to refer allegations of misconduct against ministers to the Ombudsman,” Lines said.

“When the jurisdiction was with the ICAC (Independent Commission Against Corruption), there was no power of the parliament to refer that type of issue to the ICAC. But now, because that jurisdiction has been dropped into the Ombudsman Act, the provisions around parliamentary referrals now apply to those allegations of misconduct and maladministration in terms of public administration.

“The select committee made full use of that.”

Lines, who ultimately cleared Chapman of wrongdoing in a report handed down in May – one month after she announced she would quit politics – said there “seemed to be a misuse of resources” because the matter was already investigated before it reached his desk.

He conceded Chapman took a “risk” when she rejected the port, but the decision did not constitute a conflict of interest.

“She knew that there were some murmurings and previously in parliament there had been voices about her having a conflict of interest and she made a ministerial statement about that,” he said.

“That was a political risk that she took, not an ethical one from my point of view.

“She became unstuck from that because the political process was followed through the select committee – they had the numbers.

“She was subject to parliamentary discipline. In my view, that should have been left there.”

Lines said by the time the matter reached his desk, Parliament had spent over $100,000 on the committee inquiry.

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He said while he welcomed referrals from parliamentary committees, “it needs to be on issues that the committee itself has not already decided”.

“The referral provision in the Ombudsman Act obliges the Ombudsman to investigate, as long as it’s within the jurisdiction,” he said.

“There’s no public interest criteria to be met – as long as the referral relates to a matter that’s within the Ombudsman’s jurisdiction, I must investigate. I have no choice.

“I think there’s some work to be done with reviewing what has occurred.”

Lines told InDaily in May that he believed Chapman was “hard done-by” on the question of conflict of interest and that the reason his findings were different to those of the parliamentary committee’s was because his investigation was longer and done in private.

His report criticised the committee for its referral to him on matters on which it had already adjudicated – suggesting it had the potential to compromise the independence of his office.

During his speech, Lines also revealed the government was seeking advice on changing the ministerial code of conduct.

He said he understood the proposed changes focused on amending the definition of a perceived conflict of interest to encompass situations where a minister’s friend has a public view on a matter under deliberation.

It comes after Lines found Chapman did not have a private interest in the port decision, despite her friendship with Kangaroo Island Mayor Michael Pengilly, who was a vocal opponent of the proposed development.

“I think in this arena where we’re talking about public issues, friends having different views about that issue is part of the public discourse and it doesn’t create a private interest,” he said.

“If the government disagrees with me on that it’s got full control of the ministerial code of conduct and it could easily, if it wanted to, improve the detail around determining the existence of a perceived conflict of interest and include in that, that having friends with opposing views creates a private interest.

“It’s within the government’s power to close that loophole if it wants.

“I understand that they’ve been taking some advice about that.”

But Lines said changing the ministerial code of conduct in such a way would be a “bad move”.

“I think that would be setting the net too wide and (would) create all sorts of impractical problems for ministers,” he said.

A state government spokesperson confirmed to InDaily that the chief executive of the Department of Premier and Cabinet was currently undertaking a review of conflict of interest arrangements arising out of Lines’ findings in the Chapman case.

They said the government would give “due consideration to matters raised by the Ombudsman in relation to his functions”.

“The Ombudsman plays a crucial role in safeguarding public integrity in South Australia,” they said.

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