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SELECT COMMITTEE ON SUPERANNUATION AND FINANCIAL SERVICES - 18/05/2001 - Prudential supervision, global financial services and superannuation guarantee charge

CHAIR —Welcome. I understand you have some corrections to make to your submission.

Mr Allingham —Yes. There are a couple of minor matters, Mr Chairman. They do not affect the tenor of the submission, but I understand it would be preferable if I read them into the record: in the third paragraph on the first page, the paragraph beginning, `The FOI Act', by omitting the word `statutory' and putting in its place `legally enforceable'. The following paragraph is the definition section out of the Freedom of Information Act. That act has been recently amended by the repeal of the Tasmanian State Service Act 1984 which was replaced by the State Service Act 2000. There are some consequential amendments to the reference there so that it will read, `Agency means', and then deleting the words `as defined' et cetera, up until 1994, and substituting the words `within the meaning of the State Service Act 2000'. At the very end of that paragraph replacing the word `municipality' by the word `council'.

CHAIR —Thank you. Would you like to speak to your submission?

Mr Allingham —Yes. I am conscious of the time and I do not intend to speak at any length at all. It is simply to explain that the position of the Ombudsman in relation to this matter is restricted very much to the question of the Freedom of Information Act. The Tasmanian Ombudsman asserts no authority or jurisdiction over the Law Society except in respect of the question of freedom of information so that really is the extent of our involvement with this proceedings. The submission deals with that and there is really nothing else that I need to add at this stage, apart from answering whatever questions the committee might have.

CHAIR —What is your relationship and how do you interact with the Legal Ombudsman?

Mr Allingham —We have no direct relationship. The Legal Ombudsman is appointed under the Legal Profession Act and operates under that act, and of course the Tasmanian Ombudsman is appointed under the Ombudsman Act of the state of Tasmania. They are two separate acts. There is no direct relationship between us at all. The only relationship we have is an informal one because a number of people come to us and complain about lawyers and we say, `No, you can't come to us. You need to go to the Law Society and then to the Legal Ombudsman, rather than the Tasmanian Ombudsman.'

CHAIR —Why can't people who have a concern come to you rather than to the Legal Ombudsman, because you are a state appointment.

Mr Allingham —State appointment, yes.

CHAIR —Who appoints the Legal Ombudsman?

Mr Allingham —The Legal Ombudsman is also a state appointment but the Tasmanian Ombudsman's jurisdiction is restricted to government departments and authorities, councils and the like—what you might call government authorities.

CHAIR —Have you had a chance to look at the submission from the Law Society which talks about issues such as freedom of information matters that are very close to your heart and on which you have expressed a view.

Mr Allingham —Yes. I did have a quickish glance at the supplementary submission this morning.

CHAIR —There are some issues there:

The Law Society does not have financial resources to engage any further staff.

You say you have had an opportunity to look at it?

Mr Allingham —Yes. I have not given it detailed consideration but I have had a chance to look at it, yes.

CHAIR —But you are not in a position to comment on it?

Mr Allingham —Yes, I am sure I can comment on it.

CHAIR —We would invite you to make a comment.

Mr Allingham —I could respond to a question. I might find it difficult to make a general comment in respect of the submission.

Senator HOGG —What you might like to do is take that question on notice from the chair and give us your view in writing in a couple of days time, if you can.

Mr Allingham —Yes, certainly. I can make some comments about some of the provisions. I did write a few notes—

Senator HOGG —No. I understand your difficulty in just receiving it this morning and maybe not being in the position to give us a comment now. Obviously, it would assist the committee if you can take away what the chair has asked and give us a considered view. It would help us.

Mr Allingham —Certainly. The position between the Ombudsman and the Law Society is fairly clear. They say that they are not subject to the jurisdiction for various reasons, which they reiterate, and we say they are. There, unfortunately, the matter lies at the moment, incapable—it would appear—of resolution because the advice we have received is that the Ombudsman has no standing to enforce its decision in the Supreme Court and has no standing to go to the Supreme Court, except as an interested party if somebody else goes, and the Law Society chooses not to take any action for reasons which I think it probably sets forth in its submission. So there unfortunately the matter lies.

Senator ALLISON —That is the point I was going to ask you about. There appears to be something of a stalemate.

Mr Allingham —Yes, a Mexican stand-off I think you might call it really. The other parties, of course, are the applicants for information who clearly would have standing to take it further but possibly do not have the means.

Senator ALLISON —So they should take it to which court?

Mr Allingham —To the Supreme Court I think is the appropriate body. But that is subject to them having the finance to do so, I suppose.

Senator ALLISON —Given your advice, would you say that would be an action which would be likely to succeed?

Mr Allingham —In view of the fact that the decision of the Ombudsman was that the Law Society was subject to the act, we would say, yes, that is liable to be the case. On the other hand, the Law Society says, `No, we've got legal advice that says we are not subject to it.' So, no, there certainly would be no guarantee that the Ombudsman's position would be upheld.

Senator ALLISON —Is there any other body? Can an individual solicitor who is a member of the Law Society ask for information? Are they above any sort of FOI or any demands on supply of documentation?

Mr Allingham —We would of course say they are not above the Freedom of Information Act. Outside the Freedom of Information Act people can ask them whatever questions they like, I suppose, but whether or not they respond is a different question.

Senator ALLISON —What about the police? Could they demand documents?

Mr Allingham —I am sure the police have investigatory powers to seek answers to specific questions if there is the potential for a crime to be involved.

Senator ALLISON —In that respect, if they were able to obtain documents, would they be able to hand them over to people making complaints?

Mr Allingham —I cannot answer that. It probably depends on the documents, I suppose. But if they are gained for a particular purpose I am not sure if the police could then hand them over to an individual.

Senator ALLISON —I am just trying to look at what other avenues there are.

Mr Allingham —Yes, sure.

Senator ALLISON —It seems the Law Society just makes its own rules for its own protection. Would that be fair?

Mr Allingham —I am not an apologist for the Law Society, but the Law Society I understand have legal advice which says they are not subject to the act. As I say, I am not an apologist for them, but they have provided us with that submission and I presume they hold it in good faith.

Senator ALLISON —They have declined to present that evidence, the legal advice they have, I understand.

Mr Allingham —Yes, they have given us a sort of precis, if you like, but we have never seen the whole of the legal advice that was given to them, no.

Senator ALLISON —You may not be in a position to answer this, but what difference do you think it would make if the Law Society had been subject to FOI?

Mr Allingham —What it would have meant was that persons who sought the review through the Ombudsman for information from the Law Society would have had the chance of seeking that information from the Law Society. The Law Society would then have been bound to supply the information, subject to the exceptions that are provided for in the Freedom of Information Act. Certainly I noticed the Law Society's made reference this morning to the fact that some of the information might be exempt, and it would well appear to be in respect of things like legal advice that the society has obtained. That may well be subject to one of the exceptions or exemptions in the act. They might not have been able to get that information, but there would presumably be other information that is not covered by the exceptions.

Senator ALLISON —Apart from simply knowing what has happened to their money, being able to source documents through FOI would put people in a stronger position in what respect?

Mr Allingham —It would give them, I guess, more information. It depends on what sort of information they are after, but I presume it would give them more information as to what might have happened, or what action was being taken, or whatever it was in the question they sought. It depends upon the information they are actually seeking.

Senator ALLISON —If this committee were to make any recommendations about FOI, would it be that we urge the states to strengthen their FOI laws to make this clear? What would you suggest?

Mr Allingham —I understand from press statements that the Premier has said that he was going to introduce legislation to bring the Law Society in. It may or may not be necessary, but the Ombudsman's position, I suppose, is that we are really in the place of an umpire. It is not for us to say who should or should not come within the scope of the legislation; we are simply there to enforce it or to carry out reviews when they are sought under the act.

ACTING CHAIR (Senator Sherry) —No further questions, Mr Allingham. Thank you very much.

[2.12 p.m.]