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Thursday, 20 October 1983
Page: 2002


Mr LIONEL BOWEN (Minister for Trade)(11.57) —by leave-I move:

(1) Clause 27, page 14, lines 15 and 16, omit '', not being a decision made under sections 33 and 33A of this Act'', substitute ''(not being a decision made by a Minister''.

(2) Clause 27, page 14, at the end of proposed section 52F add the following sub-section:

''(3) Notwithstanding anything in this Part, the reference in sub-section (1) to a decision made by a Minister shall not be taken to include a reference to a decision made by a person in the exercise of a power delegated by a Minister.''.

(3) Clause 30, page 15, omit the clause, substitute the following clause:

Applications to Administrative Appeals Tribunal

''30. Section 55 of the Principal Act is amended-

(a) by omitting from paragraph (3) (b) 'he made that application' and substituting 'that application was received by or on behalf of the agency concerned'; and

(b) by omitting from paragraph (4) (c) '57 (4)' and substituting '52B (3)'.

(4) After clause 31, page 15, insert the following new clause:

Repeal of section 57

''31A. Section 57 of the Principal Act is repealed.''.

The first amendment is to clause 27, page 14, lines 15 and 16, to omit the words ', not being a decision made under sections 33 and 33A of this Act', and to substitute the words '(not being a decision made by a Minister)'. I have looked at the Senate debate on this matter. Senator Missen had suggested that the sections involved were sections 27 and 28. That was an error. I understand that the Senate appropriately corrected that error in the Journals of the Senate so that reference is made to sections 33 and 33A. This amendment by the Government will make it clear that the Ombudsman is precluded from representation in cases where a decision of a Minister is under review. Honourable members should bear in mind that Senator Missen's amendment described the role of the Ombudsman. The Government has no objection to that. But this amendment will make the point that where the Ombudsman is representing, as he is entitled to do, it is not appropriate that he have the ability to represent in cases where a decision of a Minister is under review. That is consistent with the exclusion of ministerial action from the Ombudsman's ordinary jurisdiction.

Amendment No. (2) adds a section which relates to the fact that power can be exercised by a delegate of a Minister. Whilst the Government believes that an Ombudsman should not be empowered to represent appellants, the other factor is that there is no objection that the Ombudsman is not excluded from representation in cases where a decision is made by a person in the exercise of a power delegated by a Minister. That is the purpose of amendment No. (2). Amendment No. (3) relates to clause 30 and refers to similar provisions. The proposed amendment is consequential upon clause 27 and proposed new clause 31A. The amendment adds a new paragraph (b) to existing clause 30. The effect of the amendment determines the period in which an application to the Administrative Appeals Tribunal may be made where the decision to be reviewed has also been the subject of complaint to the Ombudsman. Reference is now made to new section 52B (3), in place of section 57 (4).

Amendment No. (4) which inserts proposed new clause 31A repeals section 57. Of course, proposed new clause 31A is consequential upon clause 27. Proposed new sections 52A and 52B substantially repeal what was contained in section 57. They will have the effect of clarifying matters relating to complaints made to the Ombudsman concerning action taken under the freedom of information legislation. That is the explanation of the amendments. I do not think I need add anything more.

Amendments agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report-by leave-adopted.