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Legal and Constitutional Affairs Legislation Committee
Commonwealth Ombudsman

Commonwealth Ombudsman


CHAIR: Welcome, representatives from the Commonwealth Ombudsman's office. While ordinarily I would invite an opening statement, unless there is something you're particularly burning to put on the record, I might suggest we go straight on to questions, given the hour. Is that something with which you're comfortable, Mr Manthorpe?

Mr Manthorpe : Entirely comfortable. We tabled our annual report yesterday. It's all in there. Over to you.

CHAIR: Excellent.

Senator KIM CARR: I will put my questions on notice, given the hour.

CHAIR: Thank you, Senator Carr.

Senator PATRICK: Ombudsman, in your act under section 9 you have powers to command production of documents and the tendering of information. Has that power been used over the last couple of years?

Mr Manthorpe : On a small number of occasions, yes. I can think of a couple of occasions, two or three. It's rarely used because, generally speaking, when we approach agencies that we oversee—to remind you, we oversee most agencies in the Commonwealth, the exception being the tax office, where the Inspector-General of Taxation has a role that is akin to ours, and the intelligence agencies, where the Hon. Margaret Stone has a role. So we look over the rest of Commonwealth administration as well as a number of other places.

Typically, we investigate matters that come to us by way of complaint. We also do own-motion investigations and the like. Typically, when we ask for information without exercising the powers that you refer to we get that information. We exercise the powers in circumstances where either we think something might be being withheld from us, which is unusual, or in circumstances where we're seeking, sometimes in consultation with the person seeking the information, to provide the appropriate protections for that person to provide the information to us.

Senator PATRICK: If necessary, on notice, can you provide the committee with, over the last three years, how many were issued and whether it was issued through a member of an agency or some other person? I presume you can require anyone who might have information, including people who are not government agencies, to provide you with information.

Mr Manthorpe : Yes. I will check that point of detail in coming back to you, but we will come back to you on notice on that matter.

Senator PATRICK: To give you some context to my question, the economics committee is looking at matters related to the IGT or the IGTO. By way of section 15 of their act they have the same provisions, or section 9 applies to the IGT. One of the reasons they choose to issue a notice might be to provide protection, by way of their section 39, to anyone that is producing that information. I looked through your act, briefly, and I couldn't see a similar provision to their section 39. Does your section 9 offer a protection in circumstances where someone applies retribution of some sort or victimises someone on account of them complying with a section 9 direction?

Mr Manthorpe : I will correct this on notice if I am wrong, because I don't have the act in front of me; my colleague does. My understanding of the layman's working of the act is that if I issue a direction it does provide certain protections to the person to whom I am issuing the direction. But I'm happy to clarify that. If Ms Hinchcliffe has a more detailed answer, we could provide it now. If not, we'll take it on notice.

Ms Hinchcliffe : We'll take it on notice.

Senator PATRICK: To your recollection, have you ever been required to exercise that protection? For example, someone has come to you and said, 'I was doing what you said, Sir—

Mr Manthorpe : And something terrible has happened.

Senator PATRICK: and something terrible has happened. My boss kicked me out of the office,' or something like that.

Mr Manthorpe : Not to my recollection, no.

Senator PATRICK: In circumstances—

Ms Hinchcliffe : Sorry, Senator Patrick. The protections that are in our act are protections that go to immunity from criminal prosecution, and civil immunities, in effect.

Senator PATRICK: I'm more interested if someone applies retribution to someone who is assisting you with an investigation, by way of section 9, and someone decides they don't like that in some way, and punishes them—

Ms Hinchcliffe : Some sort of reprisal action, I think is what you're asking.

Senator PATRICK: Some sort of reprisal action.

Ms Hinchcliffe : We'll go away and have a look at that on notice.

Senator PATRICK: That's the protection I'm looking for. I'm happy to take this on notice. In those circumstances, if you got to a point where you felt retribution had occurred, assuming your act provides that protection, how would you seek to exercise or enforce that protection? In some respects it might depend whether there's a criminal sanction associated with it or some other remedy. Could you explain that on notice.

Mr Manthorpe : I think it would depend on what it was that was being done. It's always dangerous to hypothesise, but, if some grave harm was being done to someone that was in the nature of a criminal harm, off the back of the fact that they had revealed something to us as part of an investigation we were undertaking under the Ombudsman Act, then I can imagine we would refer such a matter to the relevant law enforcement authorities. That might be the AFP in a corruption manner, covered by ACLEI. It might be the gentleman who was here five minutes ago. But I'm speculating because it would really depend on the circumstances, and I'm not aware that the circumstances have arisen. Then, in parallel to all of that, there's the PID Act, which we also have oversight of.

Senator PATRICK: But obviously this is dealing with a matter that's not associated with whistleblowing rather to someone who's been required to assist you. I'll just give you the context, which might help you answer it better on notice. The Economics Committee has looked at a case of a Mr Ron Shamir, who was issued with a notice some time in May 2015, and on 9 June the tax office became aware that he had been issued with a notice. On 10 June he was marched out of the office. It's conflated with a workplace issue. I asked the IGT—and I'm not being disrespectful; she's new—what would normally happen in those circumstances? She has taken that on notice. I'm just trying to work out what you might do in those circumstances. That might be helpful.

Mr Manthorpe : I appreciate that her legislative framework is similar and in some ways based on mine, but not the same.

Senator PATRICK: Yes.

Mr Manthorpe : So I am happy to take that on notice and provide you a full response.

Senator PATRICK: Thank you.

Mr Manthorpe : No problem.

CHAIR: Are there any other questions for the Ombudsman? Thank you very much for sticking it out this long. We do appreciate you making yourselves available.