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Migration and Ombudsman Legislation Amendment Bill 2005

Schedule 2 Amendments relating to the Commonwealth Ombudsman

Part 1 Main amendments

Complaints (Australian Federal Police) Act 1981

1  Subsection 38(2)

Omit “paragraph 19(1)(a)”, substitute “subsection 19(1)”.

Ombudsman Act 1976

2  Subsection 3(1)

Insert:

Commonwealth service provider has the meaning given by section 3BA.

3  After subsection 3(4A)

Insert:

          (4B)  For the purposes of this Act, if:

                     (a)  a person is not an officer of a Department or prescribed authority; and

                     (b)  the person is, or is an employee of, a Commonwealth service provider of the Department or prescribed authority under a contract; and

                     (c)  for the purposes of the contract, the person takes action in the exercise of a power or the performance of a function for or on behalf of the Department or prescribed authority; and

                     (d)  the person does not exercise the power or perform the function by reason of:

                              (i)  his or her holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment; or

                             (ii)  his or her being a Judge of a court of, or a magistrate of, a State or Territory; and

                     (e)  the regulations do not otherwise provide;

the action is taken to be action taken by the Department or prescribed authority.

4  Subsection 3(7A)

Omit “under Part II”.

5  Subparagraph 3(17)(a)(v)

Repeal the subparagraph, substitute:

                             (v)  subparagraphs 35(3)(b)(i) and (ia);

6  After section 3B

Insert:

3BA   Commonwealth service providers

                   A person is a Commonwealth service provider of a Department or prescribed authority under a contract (the Commonwealth contract ) if:

                     (a)  both of the following apply:

                              (i)  the person, and the Department or prescribed authority or the Commonwealth, are parties to the Commonwealth contract;

                             (ii)  for the purposes of the Commonwealth contract, the person is responsible for providing goods or services, for or on behalf of the Department or prescribed authority, to another person who is not a Department or prescribed authority or the Commonwealth; or

                     (b)  both of the following apply:

                              (i)  the person, and a person who is (under a previous application of this section) a Commonwealth service provider of the Department or prescribed authority under the Commonwealth contract, are parties to another contract (the subcontract );

                             (ii)  under the subcontract and for the purposes of the Commonwealth contract, the person is responsible for providing goods or services, for or on behalf of the Department or prescribed authority, to another person who is not a Department or prescribed authority or the Commonwealth.

7  Subsection 4(2)

Repeal the subsection, substitute:

             (2)  The functions of the Commonwealth Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by:

                     (a)  this Act or the regulations; or

                     (b)  another Act or regulations made under another Act; or

                     (c)  an ACT enactment or regulations made under an ACT enactment.

8  At the end of section 4

Add:

             (4)  The Commonwealth Ombudsman, in performing his or her functions in relation to immigration (including immigration detention), may, if he or she so chooses, be called the Immigration Ombudsman.

9  After subsection 7A(1)

Insert:

Disclosure of information

          (1A)  Subsections (1B), (1C), (1D) and (1E) apply if:

                     (a)  the Ombudsman requests the principal officer, or (if applicable) an officer referred to in the arrangement, to give information (including an answer to a question) to the Ombudsman or to produce a document or other record to the Ombudsman; or

                     (b)  the principal officer, or (if applicable) an officer referred to in the arrangement, reasonably believes that information or a document or other record would assist the Ombudsman to make a determination under subsection (1).

          (1B)  If the officer:

                     (a)  gives the information to the Ombudsman or produces the document or record to the Ombudsman; and

                     (b)  by doing so:

                              (i)  contravenes any other enactment; or

                             (ii)  might tend to incriminate the officer or make the officer liable to a penalty; or

                            (iii)  discloses a legal advice given to a Minister, a Department or a prescribed authority; or

                            (iv)  discloses a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege; or

                             (v)  otherwise acts contrary to the public interest;

the information or the production of the document or record is not admissible in evidence against the officer in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act.

          (1C)  The officer is not liable to any penalty under the provisions of any other enactment by reason of his or her giving the information to the Ombudsman or producing the document or record to the Ombudsman.

          (1D)  For the purposes of the Privacy Act 1988 , the giving of the information to the Ombudsman or the production of the document or record to the Ombudsman is taken to be authorised by law.

          (1E)  Subsection (1B) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the information, document or record.

Note 1:    The following heading to subsection 7A(1) is inserted “ Ombudsman may make preliminary inquiries ”.

Note 2:    The following heading to subsection 7A(2) is inserted “ Arrangements with Departments and prescribed authorities ”.

10  After subsection 8(2)

Insert:

Disclosure of information

          (2A)  Subsections (2B), (2C), (2D) and (2E) apply if:

                     (a)  either:

                              (i)  for the purposes of an investigation under this Act (whether or not the investigation has been completed), the Ombudsman requests a person to give information (including an answer to a question) to the Ombudsman or to produce a document or other record to the Ombudsman; or

                             (ii)  a person reasonably believes that information or a document or other record is relevant to an investigation under this Act (whether or not the investigation has been completed); and

                     (b)  any of the following apply:

                              (i)  the person obtained the information, document or record in the course of the person’s duties as the principal officer of a Department or prescribed authority, and the person is still the principal officer of the Department or prescribed authority;

                             (ii)  the person obtained the information, document or record in the course of the person’s duties as the principal officer of a Department or prescribed authority, the person is no longer the principal officer of the Department or prescribed authority, and the principal officer of the Department or prescribed authority has authorised the person to give the information to the Ombudsman or to produce the document or other record to the Ombudsman;

                            (iii)  the person obtained the information, document or record in the course of the person’s duties as an officer (other than as the principal officer) of a Department or prescribed authority, and the principal officer of the Department or prescribed authority has authorised the officer to give the information to the Ombudsman or to produce the document or other record to the Ombudsman;

                            (iv)  the person obtained the information, document or record lawfully but not in the course of the person’s duties as an officer (including as the principal officer) of a Department or prescribed authority.

          (2B)  If the person:

                     (a)  gives the information to the Ombudsman or produces the document or record to the Ombudsman; and

                     (b)  by doing so:

                              (i)  contravenes any other enactment; or

                             (ii)  might tend to incriminate the person or make the person liable to a penalty; or

                            (iii)  discloses a legal advice given to a Minister, a Department or a prescribed authority; or

                            (iv)  discloses a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege; or

                             (v)  otherwise acts contrary to the public interest;

the information or the production of the document or record is not admissible in evidence against the person in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act.

          (2C)  The person is not liable to any penalty under the provisions of any other enactment by reason of his or her giving the information to the Ombudsman or producing the document or record to the Ombudsman.

          (2D)  For the purposes of the Privacy Act 1988 , the giving of the information to the Ombudsman or the production of the document or record to the Ombudsman is taken to be authorised by law.

          (2E)  Subsection (2B) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the information, document or record.

Note 1:    The following heading to subsection 8(1) is inserted “ Ombudsman must inform of investigation ”.

Note 2:    The following heading to subsection 8(2) is inserted “ Investigations to be in private ”.

Note 3:    The following heading to subsection 8(3) is inserted “ Ombudsman may obtain information ”.

Note 4:    The following heading to subsection 8(4) is inserted “ Rights to appear ”.

Note 5:    The following heading to subsection 8(8) is inserted “ Ombudsman may discuss investigation with Ministers ”.

Note 6:    The following heading to subsection 8(10) is inserted “ Breaches of duty etc. ”.

11  At the end of section 8

Add:

           (11)  If:

                     (a)  a person is, or is an employee of, a Commonwealth service provider of a Department or prescribed authority under a contract; and

                     (b)  in the opinion of the Ombudsman, there is evidence that the person has engaged in conduct that:

                              (i)  would, if the person were an officer of the Department or prescribed authority, amount to a breach of duty or to misconduct; or

                             (ii)  should be brought to the attention of the principal officer of the Department or prescribed authority; and

                     (c)  in the opinion of the Ombudsman, the evidence is, in all the circumstances, of sufficient force to justify the Ombudsman doing so;

the Ombudsman must bring the evidence to the notice of the principal officer of the Department or prescribed authority.

12  Subsection 9(1AA)

Omit all the words from and including “(1AA)” to and including “is capable of”, substitute:

       (1AA)  If the Ombudsman has reason to believe that a person who is:

                    (aa)  an officer of a Department or prescribed authority; or

                   (ab)  a Commonwealth service provider of a Department or prescribed authority under a contract; or

                    (ac)  an employee of Commonwealth service provider of a Department or prescribed authority under a contract;

is capable of

13  Subsection 9(1AA)

Omit “identity of the officer”, substitute “identity of the person”.

14  Subsection 11A(1)

Omit “by or under this Act or any other Act”.

15  Subsection 14(1)

Repeal the subsection, substitute:

             (1)  For the purposes of an investigation under this Act, an authorised person may, at any reasonable time of the day:

                     (a)  enter a place that is:

                              (i)  occupied by a Department or prescribed authority; or

                             (ii)  occupied by a person who is a Commonwealth service provider of a Department or prescribed authority under a contract, if the person occupies the place predominantly for the purposes of the contract; and

                     (b)  carry on the investigation at the place.

16  Subsection 14(4)

After “under this section”, insert “(including premises occupied by a Commonwealth service provider)”.

17  Subsection 19(1)

Repeal the subsection, substitute:

             (1)  The Ombudsman must, as soon as practicable, and in any event within 6 months, after each 30 June submit to the Minister, for presentation to the Parliament, a report of the operations of the Ombudsman during the year that ended on that 30 June.

18  Paragraph 19(2)(b)

Omit “under this Act”.

19  Subsection 19C(1)

Repeal the subsection, substitute:

             (1)  The functions of the Defence Force Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by:

                     (a)  this Act or the regulations; or

                     (b)  another Act or regulations made under another Act.

20  Subsection 29(8)

Omit “under this Act or any other law”.

21  Paragraph 35(3)(a)

Omit “under this Act”.

22  Subparagraph 35(3)(b)(i)

Omit “furnished”, substitute “given”.

23  After subparagraph 35(3)(b)(i)

Insert:

                            (ia)  if the information was given by a person who is, or is an employee of, a Commonwealth service provider of a Department or prescribed authority under a contract—with the consent of the principal officer of the Department or prescribed authority or of the responsible Minister; or

24  Subparagraph 35(3)(b)(ii)

Repeal the subparagraph, substitute:

                             (ii)  if the information was given by a person otherwise than as set out in subparagraph (i) or (ia)—with the consent of the person who gave the information.

25  Subsections 35(7) and 35A(1) and (2)

Omit “under this Act”.



 

Part 2 Other amendments

Migration Act 1958

26  Paragraph 193(3)(b)

Repeal the paragraph.

27  Subsection 193(3)

Repeal the subsection, substitute:

             (3)  If a person covered by subsection (1) has not made a complaint in writing to the Human Rights and Equal Opportunity Commission, paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 does not apply to the person.

Ombudsman Act 1976

28  Subsection 19M(1)

Repeal the subsection, substitute:

             (1)  The functions of the Postal Industry Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by:

                     (a)  this Act or the regulations; or

                     (b)  another Act or regulations made under another Act.

29  Subparagraph 19R(3)(b)(vii)

Omit “(10)”, substitute “(11)”.

30  After subparagraph 19R(3)(b)(viii)

Insert:

                        (viiia)  paragraphs 9(1AA)(ab) and (ac);

31  After subparagraph 19R(3)(d)(i)

Insert:

                            (ia)  subparagraph 35(3)(b)(ia);

Postal Industry Ombudsman Act 2005

32  Items 15 and 16 of Schedule 1

Repeal the items, substitute:

15  Subsection 193(3)

Repeal the subsection, substitute:

             (3)  If:

                     (a)  a person covered by subsection (1) has not made a complaint in writing to the Human Rights and Equal Opportunity Commission, paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 does not apply to the person; and

                     (c)  a person covered by subsection (1) has not made a complaint to the Postal Industry Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19R of that Act) does not apply to the person.