Ombudsman and Other Legislation
Ms Cate Faehrmann: The Greens will support the Ombudsman and Other Legislation Amendment Bill 2024 subject to what happens to the amendments foreshadowed by the Opposition. The bill amends the Ombudsman Act to make a number of reforms aimed at efficiency. It also makes minor amendments to the Community Services (Complaints, Reviews and Monitoring) Act 1993 and the Disability Inclusion Amendment Act 2022. I note the amendments were requested by and made in consultation with the Ombudsman's office. It is unfortunate, though, that more information has not been provided to members as to exactly what the feedback from the Ombudsman's office was and exactly why all of the changes that the Ombudsman has requested were made. Some seem very straightforward, but the issues that the Hon. Susan Carter raised were also identified by The Greens. The reasons for those changes have not been provided. However, these changes are mainly aimed at ensuring the agency is effective and efficient, and that is something that The Greens support.
The amendments will provide clarity around the definition of an Aboriginal program. We will speak to that more in the Committee stage because there is a long history as to why the Opportunity, Choice, Healing, Responsibility and Empowerment [OCHRE] program is specifically mentioned in this legislation. It is important that members of this place, many of whom were not around in 2014, are cognisant of the OCHRE program's history, why it was legislated and why a Deputy Ombudsman (Aboriginal Programs) was appointed 10 years ago. We support the OCHRE program. To date, it is the only program of its kind that is specifically prescribed in the legislation.
There is an amendment that will provide for a general definition of the types of Aboriginal programs that should be monitored by the Ombudsman, including but not limited to the OCHRE program. Again, we will talk to that in Committee. Flowing from that change, however, the bill also proposes to amend the requirement that the Ombudsman is to assess all Aboriginal programs. It instead provides the Ombudsman with discretion as to the monitoring and assessment of those programs. Again, we find that incredibly problematic, with no justification behind such a potentially significant change that will have significant ramifications being included in the bill.
A New South Wales Government ministerial taskforce was established in 2011 and formed the new plan called the OCHRE program. The taskforce's final report into Aboriginal programs noted that the Auditor-General and Ombudsman at the time had raised the need for transparent and clear reporting and for a strong Aboriginal voice on issues fundamental to improving the lives of Aboriginal people. Key messages from community consultation at the time included a need to involve transparent and open dialogue with Aboriginal people. They recommended that accountability be improved through independent auditing and scrutiny of the Government's programs and services directed towards Aboriginal people. Again, that was the reasoning behind the creation of the deputy role.
I note that the Government's statement of public interest on this bill provides that consultation is being carried out with the Ombudsman's office and other New South Wales Government agencies. I was informed by the Minister's office today that the consultation included Aboriginal affairs. However, when we consider the extraordinary consultation that took place before the 2014 changes to the Ombudsman Act, it is not good enough that there has been no consultation carried out with Aboriginal people for this change.
I understand we also asked the Minister's office about this and whether Aboriginal communities had been consulted. The response was that substantial consultation was carried out in 2014. I think that is quite remarkable because the whole point of the consultation carried out in 2014 was that it required the establishment of a Deputy Ombudsman specifically for Aboriginal programs and mandated within the Act that the Ombudsman undertake scrutiny of these programs. The intention of the bill before us, if it is not amended, is to remove that mandatory scrutiny and allow discretionary scrutiny. The need for scrutiny is as important now as it was then. The need to have independent oversight and the comfort and guarantee that there is a requirement for independent oversight is incredibly important. Close the Gap data released in March this year shows that only five out of 19 targets for First Nations Australians are on track.
The other amendment of concern is the proposal to omit section 31Z. I note the Opposition has also spoken about that and will move amendments. Section 31Z prohibits the Ombudsman or a public authority from disclosing information tending to identify a person who takes protected action. A protected person is someone who, for example, makes complaints or disclosures of information about a matter that concerns serious maladministration—in other words, potentially, a whistleblower. That is quite a timely amendment, in fact, because we know that just this week whistleblower David McBride was jailed for almost six years for disclosing information about war crimes—not the war criminal, but the person who disclosed and uncovered those crimes.
It is no surprise that people want to speak up about maladministration. We need to do everything we can to make it easier for that person and to protect them, and section 31Z provides that. The section was introduced specifically only a few years ago. There are reasons why this Parliament makes laws and there are reasons why in 2014 it amended the Ombudsman Act, which The Greens supported at the time. I will speak to that more in Committee. We were pleased with those changes at the time. There are reasons why section 31Z was included as well. Having said that, I hope that these amendments will be supported in Committee. They are important.
It is one thing to hear that these significant changes to the Ombudsman's functions are what it wants, but I suggest that detailed correspondence, statements and supporting documents from the Ombudsman would really help members to understand the purpose of the changes, including why they would make the Ombudsman's office more efficient, as the Minister says. From a principle perspective, that would help members be able to make decisions and be confident that the changes we are supporting will make the Ombudsman's work better and strengthen its independence. I am not convinced that every change proposed in the bill will do that.
Full text of the debate:
Hon. Susan Carter:
I speak in debate on the Ombudsman and Other Legislation Amendment Bill 2024. The bill will amend the Ombudsman Act 1974 and the Community Services (Complaints, Reviews and Monitoring) Act 1993 and repeal the Ombudsman Regulation 2016. These are all amendments requested by the NSW Ombudsman. I agree with the words of the Hon. John Graham in his second reading speech that it is good government to consult with the Ombudsman to ensure that office is an effective, strong and independent integrity agency. The Opposition also agrees that it is critical that our integrity agencies are equipped with appropriate legislative frameworks to enable the efficient and effective exercise of their principal functions.
Much of this bill is uncontroversial and I will deal with it briefly. The bill will permit the Ombudsman to make preliminary inquiries to determine whether or not jurisdiction exists in relation to particular conduct and the exercise of particular functions. This will enhance the effective and efficient execution of the Ombudsman's responsibilities in cases where an investigation cannot be pursued or is deemed unnecessary. Any information revealed to the Ombudsman during those preliminary inquiries would be safeguarded by the Ombudsman's statutory confidentiality duties, ensuring the protection of disclosed information. This is a sensible and efficient amendment, and we are happy to support it.
The bill also extends the power of the Ombudsman to make copies of any documents that it inspects and creates an express statutory duty for a public authority to cooperate with the Ombudsman and, if asked, assist the Ombudsman to exercise its powers. This is consistent with recommendations from the Commonwealth Royal Commission into the Robodebt Scheme. It is important as legislators that we learn from mistakes and refine our legislation to ensure that it is working as intended and in the best possible way.
The bill also provides an express statutory power to provide education and training services and charge reasonable fees for the provision of those services. Education and training have long been viewed as essential to the Ombudsman's role of capacity‑building, proactively improving complaint‑handling and promoting good administrative conduct in the public sector. The Opposition has no issues with any of these provisions. The bill makes some other consequential amendments which, in general, we are happy to support.
However, there are two issues with this bill that the Opposition will seek to amend. The first is the provision to repeal the current section 31Z that prohibits the disclosure of information tending to identify a person as a protected person. A protected person includes a person who has made a complaint to the Ombudsman, any public official providing information or documents on behalf of an agency about a complaint and any other person assisting the Ombudsman in some way. Section 31Z was introduced by the Coalition in 2022 as part of the Public Interest Disclosures Act. The Ombudsman has formed the view that this provision imposes an unnecessary administrative burden and should be removed.
As I observed earlier, it is good governance to consult with bodies such as the Ombudsman to ensure the best interaction with legislation. However, in this instance, no other stakeholders appear to have been consulted. That is poor governance. Furthermore, it is not the role of government to simply remove an apparent administrative burden without examining the reasons for that burden. In fact, no other reasons have been given for this change except that it was requested by the Ombudsman. We will therefore seek an amendment to oppose this change. The reasons for its inclusion in 2022 remain valid today. We do not support repealing protections for people who give the Ombudsman information simply because it creates work for the Ombudsman.
The second issue that the Opposition will seek to amend relates to changes in the Ombudsman's obligations to monitor and assess Aboriginal programs under part 3B of the Act. Instead, under this bill, the Ombudsman will have discretion to determine if, when and which programs are to be monitored. The Government's argument for this change is that it is "a step forward in the independence of the Ombudsman" and that it is consistent with the view of Parliament when part 3B was introduced in 2014 but "makes it real in the modern circumstances".
However, we disagree that this change is consistent with the view of Parliament. I quote from the second reading speech given by the Minister for Citizenship and Communities, and Minister for Aboriginal Affairs, in 2014. When talking about the introduction of part 3B and the monitoring that would be part of it, he said:
The idea for this initiative came from Aboriginal community leaders and demonstrates the commitment of the Government to listen to communities and to work in genuine partnership with them to implement much-needed reform. This is an Australian first—no previous State or Federal government has opened itself up to this level of independent scrutiny of its Aboriginal programs. In three recent independent reports both the New South Wales Auditor-General and the NSW Ombudsman have called on government to have greater accountability in the design and delivery of programs and services for Aboriginal people. In May 2011 the Auditor‑General stated in his report on the previous Labor Government's Aboriginal Affairs Two Ways Together plan that, "…it has not delivered the improvement in overall outcomes for Aboriginal people that was intended." The Auditor-General recommended that an independent auditor undertake an annual review of government programs and services delivered to Aboriginal people, to build an evidence base of what works in Aboriginal affairs, and to appoint an independent advisor as a champion for Aboriginal people in New South Wales.
The Deputy Ombudsman (Aboriginal Programs) was the champion appointed as part of the scheme in part 3B. These same concerns hold as strongly in 2024 as they did 10 years ago in 2014. It does not appear that the Government has properly consulted on or addressed this issue, so we will move an amendment that maintains the Ombudsman's obligation for oversight. Subject to those amendments, the Opposition is happy to support the bill.