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Tuesday, 23 August 1983
Page: 35

Mr RUDDOCK(5.03) —The Ombudsman Amendment Bill 1983 and the Ombudsman ( Miscellaneous Amendments) Bill 1983 are both supported by the Opposition. The Minister for Employment and Industrial Relations (Mr Willis), the then Minister Assisting the Prime Minister for Public Service Matters, in his second reading speech introduced the first of these two Bills, graciously acknowledged the bipartisan support for the original Ombudsman Act 1976. Further, he acknowledged that the present Bill is substantially the same amendment Bill introduced in September by my colleague the honourable member for Farrer (Mr Fife) on behalf of the former Government. He noted that each Bill largely implemented the recommendations of the Administrative Review Council, a statutory advisory council to government. The Council's views were developed in its working party report 'Jurisdiction of Ombudsman' of 1980. That report was tabled in the Parliament by the honourable member for Farrer on 4 July 1981.

The Ombudsman Amendment Bill has two purposes. The first is to create a statutory office of Defence Force Ombudsman to replace the previously non- statutory office and to create and confer that office on the Commonwealth Ombudsman. The second purpose is to make various other amendments to the Act in the light of what is now called operational experience to date. The Ombudsman ( Miscellaneous Amendments) Bill is complementary and makes similar operational amendments to the Complaints (Australian Federal Police) Act 1981, which Act provided a role for the Ombudsman to investigate complaints made against the Australian Federal Police.

It is now six years since the Commonwealth Ombudsman commenced operations. Professor J. E. Richardson has admirably fulfilled that role. In his 1981-82 report he gave details of the way in which members of the public are becoming increasingly aware of the way in which the Ombudsman may be of assistance and have made larger numbers of complaints to him, both written and oral. In addition to public awareness he noted that the increasing involvement of government in people's lives was a contributing factor to his increasing work load. Professor Richardson did not see that growth as an index of dissatisfaction with Commonwealth administration. In fact, the Ombudsman commented favourably on the high level of co-operation received from government departments and authorities, notwithstanding the particular complaints on which he was required to report to Parliament.

It is interesting to note at this time and in this debate the willingness of members of parliament to have resort to the Ombudsman in particular cases. The honourable member for Farrer stated last year that on 300 occasions in the five years of operations members had referred complaints to the Ombudsman on behalf of constituents. I well recall participating in debates before entering this House on whether the Scandanavian Ombudsman could fulfil a useful role in our parliamentary and responsible system of government. Like many students of government at that time, I saw this European model as alien to our system in which members should be responsible an accountable to Parliament for all actions of their departments and officials. I can well recall hearing the view that such an intrusion into our system would prejudice the role of members of parliament.

The acceptance of the Ombudsman in six short years is best reflected by the statements of the former Prime Minister, Malcolm Fraser, in his address of October last year to the Australian Conference of Ombudsmen. He noted that the institution helps government administration to be adaptive, responsible and sensitive to the needs of average Australians. He noted that in his experience he sometimes used the Ombudsman to check the Ombudsman's efficiency against normal departmental inquiries. I am sure that, to officials, that was an interesting race. It is in this context of six years practical experience that these amendments-these reforms-are being proposed in order that the Ombudsman might work more efficiently.

I turn now to the Defence Force Ombudsman. The Bill proposes to vest in the office of the Commonwealth Ombudsman a statutory office of Defence Force Ombudsman. While the powers are the same, the Defence Force Ombudsman will have jurisdiction to investigate actions arising out of service in the Defence Force. A special office of Deputy Ombudsman (Defence Force) is to be created. This proposal avoids the existence of two ombudsmen with overlapping jurisdiction and should ensure savings in cost. I note from the Minister's address that the only anticipated extra cost is the extra salary of the Deputy Ombudsman of $50,350 per annum.

I simply would like to reiterate that servicemen and women do not enjoy complaints mechanisms that other Australians, particularly those in civilian employment, enjoy. It is envisaged that not only current and former servicemen but also their dependants will, if within jurisdiction, be able to lodge complaints under this amending legislation. As the Minister notes, there are some matters which, as with the Commonwealth Ombudsman, are excluded from review . In particular, the conduct of disciplinary proceedings and action relating to the granting or refusal of honours and awards are exempted. For completeness I observe that the Ombudsman's jurisdiction does not lie in the case of a service member unless he has first availed himself of existing internal redress procedures.

I would like to note one matter arising from a recent report of the Ombudsman, the report of 1980-81. It is one matter which concerned me and, I have no doubt, other honourable members, and which, I understand, these provisions will have now remedied. I certainly hope that that is so. In that report it was recalled that thieves tampered with naval station mail. The recovered mail was matched with envelopes and later delivered to those personnel to whom it was believed it had been addressed. In one case, naval personnel read a personal letter to one former serviceman and thereby ascertained that he was homosexual. Following a report to officers, the man was called before officers and later resigned from the Service. In reviewing the complaint which the Ombudsman received, the Navy accepted that the mail should not have been handled by Defence personnel but should have been handled by personnel of Australia Post alone, particularly in sorting and addressing it to addressees. However, the substance of the lack of jurisdiction arose when it was ruled that the Ombudsman could not review the later action taken by the Navy leading to the man's resignation, and it also excluded the possibility of the Ombudsman ordering reinstatement.

Other provisions in this legislation include those that were developed in the light of operational experience to date. The explanatory memorandum puts them as follows: To provide a statutory basis for the Ombudsman's practice of resolving most complaints with a minimum of formality and resources; to furnish the Ombudsman with additional discretion in taking action after an investigation, and to clarify that he may publish information on a current investigation in some circumstances; to facilitate co-operative investigatory activities involving the Commonwealth Ombudsman and other Australian ombudsmen; to provide for determination by the Federal Court of issues arising concerning the Ombudsman's jurisdiction; and finally, to clarify that the Ombudsman may investigate official actions preceding and succeeding Ministers' actions, and may make informal inquiries to establish his jurisdiction.

There are some matters of topical interest which I should like to draw to the attention of honourable members, and they relate to the question of jurisdiction . Firstly, while the Ombudsman's role is extended to the administrations of the Cocos (Keeling) Islands and Christmas Island, on one of our other external territories, Norfolk Island, his jurisdiction is removed because of the degree of self-government which has now been granted to that particular territory. Secondly, royal commissions are now to be excluded from the Ombudsman's review. No doubt that will be a matter of topical interest to members on the Government side of the House, in view of suggestions that the Ombudsman might be used in relation to some inquiries of late. The Bill now provides for questions of jurisdiction to be determined by reference to the Federal Court.

The Ombudsman's report of 1981-82 noted that in 1981 the Ombudsman experienced two challenges to his jurisdiction, one from the Secretary to the Treasury and the other from the Australian Broadcasting Tribunal. The former matter, whilst topical, was resolved after the Ombudsman was able to complete his inquiries on information supplied by the Treasury. The latter case, it was reported, was not resolved but related to the question whether the Ombudsman could investigate what the Australian Broadcasting Commission asserted to be programming autonomy. The difference emerges not from the Ombudsman's right to investigate programming matters but, rather, his claim to investigate complaints about false or misleading information. One would, of course, hope that such matters could be resolved by officials without cost or, if they were not able to do it, with the assistance of Ministers mindful of public expenditure. But now one hopes that, as a last resort, this matter and other like matters will be able to be determined by the Federal Court if required.

There are other new provisions in this legislation that differ somewhat from the Bill introduced by the honourable member for Farrer in 1982, and they differ in two respects. I want to make it clear that the amendments to which I am about to refer are acceptable to the Opposition, although I note that the Minister did not draw these matters to the attention of honourable members in the way of a bipartisan approach, which he asserted in his address was to be the case in relation to matters dealing with the Ombudsman. The first amendment is to clause 12, which is altered by the addition of a paragraph (B). It amends section 9 (3) of the principal Act, so that when the Attorney exercises his discretion to furnish a certificate that the disclosure of certain information is against the public interest by reason, for example, of it being that it would prejudice security, defence, or international relations of the Commonwealth-and there are three other reasons also enumerated in that paragraph, which I shall not enumerate-that certificate of the Attorney relates only to information disclosed to the Ombudsman. As I mentioned, that amendment was acceptable to the Opposition, although the matter was not outlined by the Minister.

The second matter relates to clause 19, which amends section 19 of the principal Act. It adds additional sub-sections (6), (7), (7A) and (7B). These provisions allow for an extension of time for presenting the Ombudsman's annual reports to Parliament. The Act now provides that the Ombudsman shall submit his report as soon as practicable after 30 June in each year. The 1982 Bill provided that he should lodge his report 'as soon as practicable and in any event within six months after each 30th June'. The new amendment provides that if the Ombudsman is of the opinion that he cannot comply with that six-month time frame , he may apply to the Minister for an extension of time, giving reasons. The Minister may grant an extension, but he is required within three sitting days to inform the House of the extension and his reasons for granting same. Procedures are then laid down for tabling the report if within the extended time or, alternatively, for lodging a further explanation if the report is not completed within time. While these procedures are cumbersome, the Opposition finds them acceptable in the context of this legislation.

The second Bill that we are discussing is the Ombudsman (Miscellaneous Amendments) Bill. As I mentioned earlier, this Bill makes amendments, primarily to the Complaints (Australian Federal Police) Act 1981, which complement the Ombudsman Amendment Bill. Honourable members will be aware that the Ombudsman has jurisdiction to undertake in certain cases independent investigations of complaints against the Australian Federal Police. The amendments are parallel so as to ensure basic uniformity in the Ombudsman's powers, duties and procedures in relation to complaints, be they complaints of a general nature or those relating to the Australian Federal Police. This Bill develops the informal procedures for deciding which complaints will be investigated, clarifies jurisdiction in certain territories, provides for reference to the Federal Court in appropriate situations to clarify questions of jurisdiction and the like, and assists in obtaining documents and authorises the disclosure of information by the Ombudsman in certain circumstances. It also meets with the Opposition's approval, and therefore will not be the subject of any objection from the Opposition on this occasion.

From time to time a number of people have written about the role of the Ombudsman, and a number of matters have been brought to attention either in reports of the Ombudsman or by independent commentators. While this legislation does not pick up all of the matters that have been the subject of comment, I should like to note some of them, because it may well be that the Government would like to look at those matters at some future time. I am not suggesting that, by examining them, whatever proposals the Government might bring forward would necessarily meet with the Opposition's approval, but some of the matters that have been noted include the fact that there is no power over Commonwealth employment matters for inquiry by the Ombudsman. From time to time, some people have suggested that the question of de facto relationships and what is in the nature of a de facto relationship might be the subject of some legislative treatment. In fact, different approaches have been taken in treating de facto relationships by the Australian Taxation Office and the Department of Social Security. There is no change, for instance, in relation to that matter in this Bill.

In relation to Telecom Australia, for instance, section 101 of the Telecommunications Act has not been amended but it has been the subject of some comment by the Ombudsman. The Ombudsman has drawn attention to situations in which quite properly, in his view, Telecom ought to be responsible for its actions causing loss to be suffered by telephone consumers or others. Very often the Ombudsman has drawn attention to the question of default, delay, error or omission. Telecom is given immunity under the Telecommunications Act for actions which cause loss by such reasons as default, delay, error or omission, and that has been the subject of comment on a number of occasions. There is still no power, as I understand it, in the hands of the Ombudsman to investigate private bodies, incorporated bodies or associations which have not been established pursuant to enactment. Whilst the definition of enactment has been widened in this Bill there are a number of bodies, private companies and the like which perhaps ought to be the subject of inquiry. I know the working party looked at the question of which private companies owned by the Commonwealth ought to be the subject of investigations. I simply note that there is still no power to investigate the whole range of private bodies, incorporated bodies or associations which people see as Commonwealth authorities.

Finally, I note that the Ombudsman can still investigate only matters of administration. There are other areas which commentators from time to time have suggested may be the subject of review and advice by the Ombudsman. There have been suggestions that his jurisdiction in that area ought to be widened. I draw those matters to the attention of the Government not because the Opposition necessarily believes that there is a need for legislation in each of those areas but because they are areas which, because they have been commented on, ought to be examined closely by the government of the day. As I said, I indicate on behalf of the Opposition our concurrence with these Bills.