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Victorian Ombudsman reveals threats to democracy and justice

Introduction by Croakey: Victoria’s departing Ombudsman Deborah Glass has published a report on her ten years in office, delivering an unusually frank and personal reflection from such an office-holder.

In a timely and pointed retrospective, Glass is particularly focused on justice and critical of knee-jerk ‘tough on crime’ approaches from the Victorian Labor Government and media outlets, which have seen far too many people ending up in prison “who should not be there”.

She also laments the State Government’s lack of appetite for prison reform.


Marie McInerney writes:

The final report published by Victorian Ombudsman Deborah Glass before her ten-year term ends on Friday has attracted national headlines, especially for its critique of the State Labor Government and former Premier Daniel Andrews, who she says created a “legacy of fear” within the public sector from his earliest days in office after ousting a senior bureaucrat.

However, the highly readable report, Reflections on Ten Years, provides many other important insights and lessons for all jurisdictions, and the national landscape on politics, the media, the public sector, justice, human rights and accountability.

It’s also timely for a number of issues she raises, including the continued failure of Australian jurisdictions to implement the United Nations Optional Protocol to the Convention Against Torture (OPCAT), which requires all signatories to establish independent inspection bodies to monitor all places of detention, and her “soft spot” for community legal centres (CLCs) that once again are under major funding pressure.

Glass says that CLCs do “fabulous work promoting access to justice to some of the most disadvantaged in our society”, and she was proud of work her office had begun with those centres around Victoria, helping their clients deal with unfair fines, sort out public housing complaints, and resolve a myriad of other matters.

“Patterns of complaints to CLCs also expose systemic issues,” she said. “My investigations into fines for disability permitholders in Maribyrnong, public housing maintenance debts, and the hard lockdown of the public housing towers were all based on early CLC contact.”

The Community Legal Centres report: A sector in crisis, released this week, highlights how inadequate funding and rising costs are pushing CLCs “to breaking point”, struggling to meet overwhelming demand and are being forced to turn people away, reduce services and close outreaches.

Also relevant are concerns about the National Legal Assistance Partnership (NLAP), which includes funding for Aboriginal and Torres Strait Islander Legal Services, Legal Aid Commissions and CLCs, and is due to expire in 2025.

The Ombudsman’s report was published as new bail laws, which she had urged, finally came into effect in Victoria, with hopes they will particularly reduce the number of Aboriginal and Torres Strait Islander people who are detained in custody while unsentenced.

The new laws followed sustained advocacy by Aboriginal and Torres Strait Islander groups and community, particularly the family of Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson, who died in prison in January 2020, after being detained for minor shop-lifting related charges.

The Victorian Aboriginal Legal Services (VALS) has welcomed the new laws but said the State Government’s backflip on vital bail reforms for children was “a betrayal” and puts Victoria’s Treaty process at risk.

Here are some other takeaways from the Ombudsman’s parting report.

Protecting citizens from abuses of power

Glass is clear on how she regarded the role of the Ombudsman as being “fundamentally about the imbalance of power between the individual and the state”, and offers a favoured quote from former New Zealand Attorney-General JR Hanan MP:

…the balance between the citizen and the state has over a long period been swinging more and more in favour of the state… this concentration of power in the state has made it all the more essential in a democracy, that the citizen should be protected against the abuses of power…

While Glass says she has never been politically affiliated, she is “unashamedly an advocate for social justice”, and has a passion for human rights “in my DNA, nurtured over a lifetime, growing up in Melbourne in a community of Holocaust survivors”.

She told her staff on her first day as Ombudsman that “you do not start a 10-year term with a plan. You start with a set of values and beliefs – in integrity, fairness, social justice and human rights – and in the way you work.”

Glass says there is much to be proud of in Victoria’s integrity system, not least that it has had an Ombudsman for over 50 years, “with a rare level of independence, the powers of a Royal Commission and the ability to hold the powerful to account”.

She also welcomes that it comes with a 10-year non-renewable term: “Long enough for a vision, not so long that you become stale or captured.”

Over-incarceration

Glass said she had already begun an investigation into rehabilitation in prisons when the Andrew Labor Government was elected in 2014, amid a 25 percent growth in the prison population in the preceding three years, the budget for correctional services rising to over $1 billion, and an increased recidivism rate.

She thought “this would be a Government more interested in justice reform and supportive of my work”.

“How wrong I was,” she says.

In June 2015, there were 6,219 people in Victorian prisons. The prison population peaked in 2019 at more than 8,200 but began to decrease during the COVID-19 pandemic, and has continued to fall, sitting at 6,329 in February 2024.

At its peak in 2019, following tighter bail laws, some 44 per cent of prisoners were on remand. While the percentage of people on remand has started to decrease (it was 36.7 per cent in February 2024), she says it’s not clear that this will continue.

With more than a third of the prison population on remand, “far too many people are ending up in prison who should not be there”, Glass says, adding she is yet to meet a prison general manager who did not agree with that statement.

Real reform was, and is still, needed in the wider justice sector, she says, but “this requires a government not driven by headlines that all too often have triggered a knee-jerk tightening of bail, parole and sentencing laws”.

These are the laws, she says, that swept up people like Veronica Nelson “who should never have been in a prison cell when she died”.

Professor Megan Williams, Principal of Yulang Indigenous Evaluation, an Aboriginal-led business that reviews and develops policies to reduce discrimination against and uphold the rights of Aboriginal people, notes there is much still to be done also in healthcare provision for Aboriginal people in Victoria’s prisons.

“Despite recommendations from Coroner Simon McGregor, who investigated Veronica’s death, the Ombudsman’s last investigation, the recently released report on prison healthcare for Aboriginal people, says little has improved and risks for death and disability continue to worsen,” Williams told Croakey.

Williams, who worked with the Victorian Ombudsman throughout 2023 investigating health care in Victorian prisons, recently co-authored this Croakey article, outlining how the inquiry had raised wider issues for prison and policing systems around Australia about the importance of reforms to ensure access to culturally safe healthcare and to conditions supporting connection with culture and the cultural determinants of health.

Glass also laments Victoria’s failure to act on OPCAT, being “one of the laggard states yet to implement a UN instrument ratified by Australia in 2017 to designate independent agencies to inspect prisons and other closed environments”.

She acknowledges the ‘tough on crime’ pressure on politicians from some mass media outlets and their audiences but says that history is “full of examples of enlightened governments taking brave steps and leading public opinion”.

“Without them we would still have public hangings, Dickensian prisons and sweatshops, not to mention institutionalised discrimination against women and minorities. Victoria was once a leader in justice reform. Perhaps one day we will be one again.”

Human rights

Glass attracted international headlines (New York Times, paywall) with her investigation and findings on the hard lockdown, without notice and under police guard, in Melbourne of more than 3,000 residents of nine public housing towers at the height of the COVID pandemic in July 2020.

She found that the timing of the lockdown “was not based on direct health advice and violated Victorian human rights laws” and called on the State Government to apologise to residents.

It refused to do so, despite ongoing urging, with Andrews saying he was not going to apologise “for doing everything possible to save lives”. Glass says she still wishes they had, but said the Government clearly learnt from the lesson.

“A year later, when there was a further outbreak of COVID-19 in the towers, things were handled very differently – as a public health, not a security issue. They may not have apologised, but actions speak louder than words,” she said.

Reflecting on human rights, Glass said she had seen, previously working in the UK, how talking about them can be misused, “how they can become dirty words”, where politicians and commentators use the term human rights “as pejorative, about upholding the rights of prisoners and illegal immigrants rather than upstanding honest citizens like you and me”.

While she had not seen the same aversion in Victoria, she said all too often human rights are poorly understood both by the public agencies that are obliged to consider them and by the public they are intended to protect. They are often dismissed or devalued by bureaucracies.

However, Glass said the COVID years brought human rights to the fore in a way she could never have imagined, in particular the right to humane treatment when deprived of liberty and the need for restrictions to freedom to be proportionate to the risk and the least restrictive means of achieving an end.

“The language of power in dealing with crisis can suggest that human rights are expendable in an emergency, with its focus on human lives. While the sentiment may be understandable in a crisis, our society is better than that. Our human rights laws are more robust than that.”

Political hot potatoes

Glass writes also about finding herself “on the horns of a dilemma” when she was given a referral from the Greens to investigate the so-called ‘Red Shirts’ scandal, the use by Labor MPs of publicly funded electoral officers for campaigning purposes before the 2014 election. The State Government had said her office had no jurisdiction to be involved.

“I had no great desire to investigate the referral, which had all the hallmarks of a political hot potato, but I had an even greater aversion to the Government telling me I couldn’t,” she said.

“This had now become a battle for my independence, with gender overtones,” she said, commenting that the investigation “inevitably affected my relationship with the Government for the years of my term”.

In another critique, she said her experience of Cabinet-In-Confidence documents in particular “suggests this shield is increasingly being used to protect government secrecy at the expense of accountability”.

Finally, Glass urges independent funding of offices like hers, saying she holds the “rather cynical view that most governments fund their integrity agencies with as little as they can get away with”.

She recommends as “a blueprint worth following by any government that cares about accountability” a joint paper on budget independence developed by her office with the Victorian Auditor-General and the Independent Broad-based Anti-corruption Commission in 2022, and which she says attracted little attention from the public or the Victorian Government.

“Our proposal is for the funding of our agencies to be the responsibility of an independent tribunal, so that governments of whatever stripe cannot be accused, fairly or otherwise, of interfering with the independence of those agencies whose job it is to hold them to account.”

Some other quotes:

“I believe in working with people wherever possible to achieve change – and that the most impactful powers are the ones you don’t need to use because everyone knows you have them.”

“It has been a mantra throughout my term, in all my dealings with the public sector: complaints are free feedback, learn to love them.”

Deborah Glass and former Victorian Premier Daniel Andrews. Still from an ABC News report: https://www.youtube.com/watch?v=QxtlDMdoydM

• See this ABC News report as well as this interview with the Victoria Law Foundation from earlier this year.


See Croakey’s archive