House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

GENERAL OUTLINE

1. This Bill would amend the Ombudsman Act 1976 (Ombudsman Act) and the Inspector-General of Taxation Act 2003 (IGT Act) to implement the Government's response to recommendations 21.1 and 21.2 of the Report of the Royal Commission into the Robodebt Scheme (the Royal Commission).

2. The Bill would bolster the powers and capability of the Commonwealth Ombudsman (Ombudsman) and the Inspector-General of Taxation and Taxation Ombudsman (IGTO) by:

•

imposing a statutory duty on agency heads and their staff to use their best endeavours to assist the Ombudsman and the IGTO in the performance of all their functions (recommendation 21.1)

•

enhancing the Ombudsman's and IGTO's powers to obtain full, free and direct access to agency records by introducing a provision equivalent to section 33(3) of the Auditor-General Act 1997 (Auditor-General Act), requiring agencies to provide all reasonable facilities and assistance (recommendation 21.2).

3. These amendments would strengthen and modernise the oversight powers of the Ombudsman and the IGTO and complement their existing information-gathering and investigatory powers. The amendments would also reinforce the responsibility of government agencies, and every member of the public service, to engage with integrity and good faith in their dealings with oversight bodies, whilst ensuring that the Ombudsman and the IGTO have effective means to access the information they need to conduct full and independent investigations.

4. These amendments would apply to any investigations on foot after commencement of the Bill to ensure the full strengthened suite of oversight powers are available to the Ombudsman and IGTO immediately.

5. In addition to implementing the recommendations of the Royal Commission, the Bill would enhance the efficiency and operation of a range of oversight mechanisms by:

•

modernising and enhancing the investigatory powers of the Ombudsman and IGTO by providing a power to obtain access to documents and other records by remote means, with a corresponding requirement for agencies to provide reasonable facilities and assistance to the Ombudsman and IGTO in the exercise of this power

•

extending the new and enhanced duties and powers contained in the Bill to apply to all statutory offices held by the Ombudsman under the Ombudsman Act – including, for example, the Defence Force Ombudsman (DFO) and the Overseas Students Ombudsman (OSO)

•

amending the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to clarify that the Inspector-General of Security and Intelligence (IGIS) is entitled to reasonable facilities and assistance when making preliminary inquiries of the head of an intelligence agency

•

making technical amendments to the Ombudsman Act to clarify provisions and improve readability of that Act.

6. Amendments in the Bill would ensure that oversight bodies, particularly the Ombudsman and IGTO, are strongly positioned to undertake independent, impartial and rigorous investigations into government agencies' dealings with the community. In doing so, the Bill is intended to improve trust in public administration and ensure that government agencies meet community expectations to engage with oversight bodies with integrity, accountability and transparency.

FINANCIAL IMPACT

7. The Bill has no direct financial impact. However, the Government committed $2.3 million over four years from 2023-24 (ongoing) to the Office of the Commonwealth Ombudsman to provide additional capacity to handle complaints and undertake investigations of systemic issues, as part of its response to the Royal Commission.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. This Bill would amend the Ombudsman Act and the IGT Act to implement the Government's response to recommendations 21.1 and 21.2 of the Report of the Royal Commission by:

•

imposing a statutory duty on agency heads and their staff to use their best endeavours to assist the Ombudsman and the IGTO in the performance of all their functions (recommendation 21.1)

•

enhancing the Ombudsman's and IGTO's powers to obtain full, free and direct access to agency records by introducing a provision equivalent to section 33(3) of the Auditor-General Act, requiring agencies to provide all reasonable facilities and assistance (recommendation 21.2).

3. In addition to implementing these recommendations, the Bill would:

•

modernise and enhance the investigatory powers of the Ombudsman and IGTO by providing a power to obtain access to documents and other records by remote means

•

extend the new and enhanced duties and powers contained in the Bill to apply to all statutory offices held by the Ombudsman under the Ombudsman Act

•

amend the IGIS Act to clarify the IGIS is entitled to reasonable facilities and assistance when making preliminary inquiries of the head of an intelligence agency

•

make technical amendments to the Ombudsman Act to clarify provisions and improve readability of the Act.

Human rights implications

4. This Bill engages the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):

•

the right to a presumption of innocence under article 14(2)

•

the prohibition on interference with privacy under article 17.

Right to a presumption of innocence

5. Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. It imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

6. This Bill would limit the right to the presumption of innocence because it would:

•

impose strict liability for elements of certain offences, and

•

place a reversed evidential burden on defendants with respect to certain defences to offences.

7. To be permissible, limitations on the presumption of innocence must be reasonable, necessary and proportionate to achieving a legitimate objective. A legitimate objective must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

8. Items 3, 4 and 9 of Schedule 1 would introduce offences for failing to provide reasonable facilities and assistance for the effective exercise of certain powers under the Ombudsman Act related to entry to premises, and access to documents and other records by remote means.

Strict liability

9. Items 3, 4 and 9 of Schedule 1 would introduce offences, each of which apply strict liability to several elements of the respective offence. The effect of applying strict liability to an element of an offence is that no fault element needs to be proved in relation to the element for which strict liability applies.

10. The application of strict liability may limit the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault by the defendant for that particular element. Strict liability provisions will not violate the presumption of innocence so long as they are reasonable in the circumstances, and maintain rights of defence.

11. Strict liability would apply to two elements of the respective offences at items 3, 4 and 9 of Schedule 1, namely that:

•

the person is:

i.

the occupier or in charge of a premises being accessed for the purposes of exercising the relevant information-gathering power (item 3), or

ii.

the principal officer of a department or prescribed authority or a Commonwealth service provider of a department or a prescribed authority under a contract (items 4 and 9), and

•

an authorised person exercises or purports to exercise the relevant information-gathering power.

12. It is appropriate that these elements do not require proof of fault as they are jurisdictional elements, rather than elements going to the essence of the offence. While the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that absolute liability should typically apply to jurisdictional elements, it is appropriate that strict liability instead applies to these elements. This is because it is appropriate that a defence of honest and reasonable mistake of fact is available.

13. Strict liability will only apply to the jurisdictional elements in two limbs of each offence and not the offence as a whole. The prosecution is still required to prove fault in relation to the remaining limb of the respective offences – that the person does not provide the authorised person with reasonable facilities and assistance for the effective exercise of the relevant power. Defences will also remain available for the offence.

14. Therefore, to the extent that the application of strict liability to elements of the offences introduced by this Bill limit the right to the presumption of innocence, the limitations are reasonable, necessary and proportionate to a legitimate objective.

Reversed evidential burden

15. Reversal of the evidential burden may amount to a limitation of the right to a presumption of innocence. However, under international human rights law, a reversed evidential burden will not necessarily limit the presumption of innocence provided the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

16. Items 4 and 9 of this Bill would include defences to the respective offences of failing to provide reasonable facilities and assistance to the Ombudsman when exercising powers to access documents or records remotely. These offence-specific defences would apply where providing reasonable facilities and assistance to an authorised person exercising remote access powers would pose an unacceptable risk to the security of any of the documents or other records held in electronic form, or otherwise to the system where the documents or other records are stored. The defences would operate in addition to the general defences available at criminal law.

17. The defences at items 4 and 9 would apply the evidential burden set out in subsection 13.3(3) of the Criminal Code to a defendant. This would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matters comprising the respective defence (ie. that there was an unacceptable risk to security) exist or do not exist. If the defendant discharges the evidential burden, the prosecution is then required to discharge its legal burden to disprove that matter.

18. In line with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the offence-specific defences in the Bill are appropriate as the relevant matters in relation to the defence are peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish these matters. A defendant would have specific knowledge regarding the documents or other records and the systems in which those documents or other records are held, including the nature and magnitude of any risks to the security of those documents, records or systems.

19. Therefore, to the extent that reversing the evidential burden for the defences would limit the presumption of innocence, limitations are reasonable, necessary and proportionate to a legitimate objective of facilitating the timely and effective access to information relevant to an investigation by the Ombudsman, provided this can occur in an appropriately secure way.

Prohibition on interference with privacy

20. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, and prohibits unlawful attacks on a person's reputation. The right to privacy includes respect for informational privacy, including in relation to storing, using and sharing private information, as well as the right to control the dissemination of personal and private information. To be permissible as a matter of international human rights law, interferences with privacy must be according to law and not arbitrary. Any limitation should be proportionate to the objectives of the limitation.

21. Items 2, 3, and 4 of Schedule 1 of this Bill would enhance the information-gathering powers of the Ombudsman to ensure an authorised person has full, free and direct access to documents or other records (including by remote means) for the purposes of an investigation under the Ombudsman Act. The authorised person would be able to access the documents or records and to inspect, take extracts from, or make copies of, any such documents or other records that are relevant to their investigation. Information, documents or other records accessed by the Ombudsman could include personal information.

22. These enhanced powers would be extended to other statutory offices established by the Ombudsman Act, such as the Defence Force Ombudsman, Postal Industry Ombudsman and Private Health Insurance Ombudsman. This is given effect either by amendments in the Bill or existing deeming provisions in the Ombudsman Act, depending on the statutory office.

23. Additionally, item 13 of Schedule 1 of this Bill would impose a new general duty on certain persons to use their best endeavours to assist in the performance of the Ombudsman's functions. This may include providing information, documents or other information relevant to the Ombudsman's functions. This general duty would also extend to the other statutory offices established by the Ombudsman Act, either through amendments in the Bill or existing deeming provisions in the Ombudsman Act.

24. Importantly, amendments in the Bill do not expand the scope or nature of information that the Ombudsman can access under its existing powers. Rather, the amendments would reinforce the Ombudsman's existing ability to access this information and expand the means by which information can be accessed to ensure consistency with contemporary practices.

25. Any information, once obtained by the Ombudsman, will be protected by legislative and policy frameworks to which the Ombudsman is subject. This includes protections under the Privacy Act 1988, the Protective Security Policy Framework and restrictions on disclosure under section 35 of the Ombudsman Act (which provides an offence for improper disclosure of information obtained in the course of duties and functions under the Ombudsman Act).

26. To the extent the amendments limit the right to privacy, this is a permissible limitation. The amendments are reasonable and necessary to ensure the Ombudsman has access to sufficient information to perform its important oversight role effectively and independently, and are directed to the legitimate objective of ensuring robust oversight of bodies within the Ombudsman's jurisdiction.

Conclusion

27. This Bill is compatible with human rights. To the extent that the Bill would limit the right to the presumption of innocence and right to privacy, those limitations are reasonable, necessary and proportionate in pursuit of a legitimate objective.

NOTES ON CLAUSES

Preliminary

Clause 1 – Short title

1. This clause provides for the short title of the Act to be the Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Act 2024.

Clause 2 – Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table. Subclause 2(2) provides that information in column 3 of the table is not part of the Bill.

3. Item 1 of the table provides that clauses 1 to 3 of the Bill (the short title, commencement and schedules provisions) and anything in the Bill not elsewhere covered by the table, will commence the day after the Bill receives Royal Assent.

4. Item 2 of the table provides that Parts 1 to 3 of Schedule 1 to the Bill (main amendments to the Ombudsman Act, amendments to the IGIS Act and IGT Act and technical amendments to the Ombudsman Act) will commence the day after the Bill receives the Royal Assent.

5. Item 3 of the table provides that Division 1 of Part 4 of Schedule 1 to the Bill (contingent amendments in relation to the Universities Accord (National Student Ombudsman) Bill 2024 (NSO Bill)) will commence immediately after the commencement of the provisions covered by item 2 of the table, or immediately after the commencement of Part 1 of Schedule 1 to the NSO Bill, whichever is later.

6. However, item 3 of the table notes that Division 1 of Part 4 of Schedule 1 to the Bill does not commence at all if Part 1 of Schedule 1 to the NSO Bill does not commence.

7. Item 4 of the table provides that Division 2 of Part 4 of Schedule 1 to the Bill (contingent amendment in relation to the Intelligence Services Legislation Amendment Bill 2023 (ISLA Bill)) would commence immediately after the commencement of the provisions covered by item 2 of the table, or immediately after the commencement of item 211 of Schedule 1 to the ISLA Bill, whichever is later.

8. However, item 4 of the table notes that Division 2 of Part 4 of Schedule 1 to the Bill does not commence at all if item 211 of Schedule 1 to the ISLA Bill does not commence.

9. Item 5 of the table provides that Part 5 of Schedule 1 to the Bill (application provision) will commence the day after the Bill receives Royal Assent.

Clause 3 – Schedules

10. This clause gives effect to the provisions in the Schedules to the Bill.

SCHEDULE 1: Amendments

Part 1 – Main Amendments

Ombudsman Act 1976

Item 1: After subsection 14(1)

11. Section 14 of the Ombudsman Act empowers the Ombudsman to enter premises for the purposes of undertaking an investigation. Subsection 14(1) provides that an authorised person may, at any reasonable time of the day, enter a place occupied by a department or prescribed authority, or occupied by a person who is a Commonwealth service provider of a department or prescribed authority under a contract, for the purposes of carrying on an investigation.

12. This item would insert new subsection 14(1A) which provides that an authorised person is not entitled to enter or remain at a place if they fail to comply with a request from the department, prescribed authority or Commonwealth service provider of a department or prescribed authority under a contract (as the case may be) to produce a written authority that proves they are an authorised person.

13. Written authority is defined in new subsection 14(1B) as an authority signed by the Ombudsman that states that the authorised person is authorised to exercise the powers under section 14, namely powers to enter premises to conduct an investigation. Under section 34 of the Ombudsman Act, the Ombudsman would be able to delegate their power to sign a written authority for the purposes of this subsection.

14. The requirement for a person, when requested, to produce evidence supporting that they are an authorised person is intended to ensure there are appropriate safeguards on the exercise of the Ombudsman's entry and inspection powers. This is particularly important in light of amendments made by item 2, which strengthen and formalise the Ombudsman's entry powers under section 14.

15. The amendment in this item would apply to the IGTO through the operation of section 15 of the IGT Act, which provides that certain provisions of the Ombudsman Act, including section 14, apply in relation to the IGTO.

Item 2: Subsection 14(4)

16. This item would repeal and substitute subsection 14(4) and insert new subsection 14(4A).

17. Subsection 14(4), which would be repealed by the Bill, provides that, for the purposes of an investigation, an authorised person is entitled to inspect any documents relevant to the investigation kept at the premises, at a reasonable time of the day arranged with the principal officer of the department or prescribed authority concerned. The subsection also provides that this power to inspect documents does not apply in relation to documents in respect of which the Attorney-General has furnished a certificate that certifies that the disclosure of information or documents concerning a matter would be contrary to the public interest under subsection 9(3).

18. New subsection 14(4) would provide that, if an authorised person enters a place under section 14, the authorised person may access any documents or other records that may be relevant to the investigation and inspect, take extracts from or make copies of any such documents or other records. The Acts Interpretation Act defines the terms 'document' and 'record' broadly, and this reference would capture access to hard copy and electronic documents available at the premises, as well as on-site access to the IT systems within which these documents and records are held. The relevance of documents or records to the investigation would, in practice, be a matter for the authorised person to assess when exercising powers under section 14.

19. This amendment strengthens the information-gathering powers of the Ombudsman by explicitly including in the legislation a power to take extracts or make copies of documents or other records accessed while entering premises. This amendment also removes the requirement for the authorised person to arrange, with the principal officer of the relevant department or prescribed authority, a time of day to exercise powers under section 14. This will ensure an authorised officer is able to exercise these powers at any reasonable time of the day.

20. New subsection 14(4A) provides that the power to access, inspect, take extracts from or make copies of documents and other records under section 14 does not apply in relation to documents or records for which the Attorney-General has given a certificate under subsection 9(3).

21. Together with other amendments in this Bill, this item implements the Government's response to recommendation 21.2 of the Royal Commission's Report. The Government's response committed to enhance the Ombudsman and IGTO's powers to obtain full, free and direct access to records by introducing powers equivalent to subsection 33(3) of the Auditor-General Act, which requires agencies to provide reasonable facilities and assistance in the exercise of certain information gathering powers.

22. The amendments in this item would apply to the IGTO through the operation of section 15 of the IGT Act, which provides that certain provisions of the Ombudsman Act, including section 14, apply in relation to the IGTO.

Item 3: After subsection 14(5)

23. This item would insert new subsections 14(5A) and (5B) to create an offence in the Ombudsman Act that is equivalent to the offence under subsection 33(3) of the Auditor-General Act.

24. New subsection 14(5A) would provide that it is an offence for a person to fail to provide an authorised person with reasonable facilities and assistance for the effective exercise of the power to enter premises under section 14. The maximum penalty for the offence is 10 penalty units. The penalty is the same as that imposed by the equivalent offence in subsection 33(3) of the Auditor-General Act and the new offence at section 14A of the Ombudsman Act (inserted by item 4 of this Bill).

25. The inclusion of the offence is intended to ensure that the requirement to provide an authorised person with reasonable facilities and assistance when exercising a power under section 14 can be effectively enforced.

26. The offence would consist of the following physical elements:

•

the person is the occupier of, or is in charge of, a place mentioned in paragraph 14(1)(a) (paragraph 14(5A)(a))

•

an authorised person exercises, or purports to exercise, a power mentioned in section 14 in relation to the place (paragraph 14(5A)(b))

•

the person does not provide the authorised person with reasonable facilities and assistance for the effective exercise of the power (paragraph 14(5A)(c)).

27. In paragraph 14(5A)(a), the terms 'occupier of' and 'in charge of' a place are intended to capture persons with a sufficient degree of control over the relevant department, prescribed authority or Commonwealth service provider located at the premises. This would include:

•

an agency head or principal officer, even if they were located at another premises, as they are the head of the relevant entity that occupies the premises and therefore they exercise control over the entity and premises

•

other officers who are in charge of or can exercise a significant level of control over the premises, such as site leaders at interstate offices.

28. In circumstances where a department, prescribed authority or Commonwealth service provider shares premises with another entity (including an entity also within the Ombudsman's jurisdiction), the offence would only be applicable to a person who meets the criteria in paragraph 14(5A)(a) in relation to the department, prescribed authority or Commonwealth service provider that is the subject of the investigation for which the entry power is being exercised.

29. Whether the provision of facilities and assistance is reasonable will depend on the circumstances of the investigation, the material sought and the nature of the function being performed. Provision of reasonable facilities and assistance would generally include providing facilities such as office space, computers or other devices, network connectivity, or filing cabinets and other secure storage. It would also include provision of assistance to physically enter and access premises (such as an agency escort or relevant security passes), assistance to locate and access relevant records (such as arranging for appropriate access controls in agency record management and email systems and filing cabinets) and assistance to inspect and make copies of documents (including extraction of data to portable drives, access to printers, scanners and photocopiers).

30. New subsection 14(5B) would provide that strict liability applies to paragraphs 14(5A)(a) and (b). As a result, the fault elements for the physical elements of the offence are:

•

for the circumstance that the person is the occupier of, or is in charge of, a place mentioned in paragraph 14(1)(a), strict liability applies and no fault element would need to be proved

•

for the circumstance that the authorised person exercises, or purports to exercise, a power mentioned in section 14 in relation to a place, strict liability applies and no fault element would need to be proved

•

for the conduct of failing to provide the authorised person with reasonable facilities and assistance for the effective exercise of the power, intention would be the fault element.

31. Removal of the requirement to prove fault for the first two physical elements is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. These are jurisdictional elements to which no fault applies but that limit the circumstances within which the conduct in paragraph 14(5A)(c) could occur. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that absolute liability should generally apply to jurisdictional elements. It is, however, appropriate for a defence of honest and reasonable mistake of fact to be available to be raised in relation to these elements. This defence would not be available if absolute liability applied and it is therefore appropriate to apply strict liability to these elements to ensure the defence of mistake of fact under section 9.2 of the Criminal Code would still be available. Importantly, the penalty does not include imprisonment and the fine does not exceed 60 penalty units.

32. The penalty of 10 penalty units is appropriate to enforce the Ombudsman's powers to enter premises for the purposes of carrying out an investigation under the Ombudsman Act and ensure exercise of these powers is effective in allowing the Ombudsman to obtain relevant material to the investigation.

33. This item, together with other items in this Bill, implements the Government's response to recommendation 21.2 of the Royal Commission, which committed to introducing an equivalent provision to subsection 33(3) of the Auditor-General Act.

34. While this item does not change the nature of the power that can be exercised under section 14, it does support the effective exercise of this power. The power under section 14 is a coercive power that allows entry to premises without the express consent of the occupier or person in charge of the place. Section 14 does not trigger the standard provisions in Part 3 of the Regulatory Powers (Standard Provisions) Act 2014. This is because the search and seizure powers in Part 3 are not appropriate to support the Commonwealth Ombudsman's oversight role, as these powers apply to investigating offence and civil penalty provisions that the triggering Act prescribes as 'subject to investigation'. The power at section 14 of the Ombudsman Act is not used to investigate individual compliance with an offence or civil penalty provision under the Act, but rather, to inform investigations into actions taken by bodies subject to jurisdiction.

35. The section 14 power and the associated offence inserted by this item are necessary to ensure that the Ombudsman can undertake full, independent and transparent investigations that are not hampered by non-compliance on the part of an entity.

36. The report of the Royal Commission emphasised the necessity of the Ombudsman having these strong powers. While it is anticipated that agencies will generally engage in good faith with the Ombudsman in the provision of documents and information relevant to an investigation, the findings of the Royal Commission demonstrated that the Ombudsman cannot always depend on this assumption.

37. The power to enter premises without consent, subject to safeguards inserted by item 1, is therefore essential to ensure the Ombudsman can provide robust and effective oversight. The introduction of an offence for failing to provide reasonable facilities and assistance in new section 14(5A) is intended to supplement the Ombudsman's powers and reinforce the responsibility of an entity to proactively assist the Ombudsman in an investigation and provide appropriate consequences in cases of non-compliance.

38. The amendments in this item would also apply to the IGTO through the operation of section 15 of the IGT Act which provides that certain provisions of the Ombudsman Act, including section 14, apply in relation to the IGTO.

Item 4: After section 14

39. This item would insert new section 14A which would empower the Ombudsman to obtain access to documents or other records by remote means. This new section is intended to modernise the information-gathering powers of the Ombudsman and ensure the Ombudsman has the powers necessary to undertake full, independent and transparent investigations efficiently and consistent with contemporary practices.

40. This power is not intended to replace the Ombudsman's ability to enter into voluntary or consent based arrangements with an agency to access that agency's systems for the purposes of an investigation. It would be open to the Ombudsman to exercise the powers in new section 14A at their discretion, including in circumstances where the Ombudsman considers an agency may not be participating in an investigation in good faith.

Subsection 14A(1)

41. New subsection 14A(1) would provide that, for the purposes of carrying out an investigation under the Ombudsman Act, one or more authorised persons may, by remote means:

•

access documents or other records held in electronic form by a department, prescribed authority, or a Commonwealth service provider of a department or prescribed authority under a contract

•

inspect, take extracts from or make copies of any such documents or other records.

42. The term 'remote means' is intended to include access by any means that does not require being physically present at the premises of a department, prescribed authority or Commonwealth service provider. This may include, for example, access by means of a user account and password or by a device, such as a laptop, provided to the authorised person for the purpose of accessing systems other than while physically on premises.

43. The intended meaning of the term 'inspect' is not limited to viewing documents or other records but may encompass analysis of the contents of any such documents or other records (including databases) accessed. The terms 'take extracts' and 'make copies' are intended to encompass any form of reproduction of a document in full or part.

Subsection 14A(2)

44. New subsection 14A(2) would provide that, before accessing documents or other records by remote means, an authorised person is required to give the relevant department, prescribed authority, or Commonwealth service provider written notice. The notice must specify:

•

the intention of the one or more authorised persons to access the documents or other records by remote means (paragraph 14A(2)(a)),and

•

the period during which the one or more authorised persons will access the documents or other records by remote means (paragraph 14A(2)(b)).

45. While the person issuing the notice must be an authorised person, they do not necessarily need to be the authorised person who will be accessing the documents or other records. Additionally, the requirement in paragraph 14A(2)(a) to specify the intention of one or more authorised persons to access the documents or other records is not intended to require listing the names of specific individuals. Rather, in accordance with the definition of authorised person in section 3(1) of the Ombudsman Act, the requirement could be satisfied by reference to a class of persons. For example, the notice could specify that the access will be made by one or more officers in the relevant section within the Office of the Commonwealth Ombudsman that conducts investigations.

46. This is intended to provide the Ombudsman with flexibility in how it specifies the authorised person(s) who will be exercising powers under section 14A in relation to a particular investigation and to mitigate against operational matters such as the movement of staff impacting on the Ombudsman's ability to effectively and efficiently exercise these powers. This is particularly relevant in the context of complex investigations that may take an extended period of time to complete.

47. The requirement in paragraph 14A(2)(b) to specify the period during which the authorised person will access the documents or other records by remote means may be satisfied in various ways, including by providing a date range or by reference to the occurrence of a particular future event. For example, it would be sufficient to specify that the authorised person will access the documents or other records by remote means at any time during the course of the investigation in relation to which access is required.

48. Multiple individual instances of access may be made within the period specified in the written notice. It is not intended that the Ombudsman be required to issue a new written notice each time an authorised person remotely accesses an agency's systems in relation to a particular investigation, provided each instance of access falls within the period of time specified in the original written notice. If the period of time specified in the notice expires and further access is required, a new notice would need to be issued.

49. Notice does not need to be issued within a particular timeframe in advance of remote access. This is intended to give the authorised officer flexibility to seek access at short notice where required, whilst maintaining the importance of notifying the department, prescribed authority or Commonwealth service provider affected.

50. Under section 478.1 of the Criminal Code, a person commits an offence if they access restricted data knowing that the access is unauthorised. Section 476.2 provides that access to data held in a computer is unauthorised when the person causing the access is not entitled to do so. Section 478.1 of the Criminal Code would apply to section 14A, meaning that a person who is not an authorised person specified in the notice would commit an offence if they accessed documents or other records under section 14A.

Subsections 14A(3) and (4)

51. New subsections 14A(3) and (4) set out how the provisions in subsection 14A interact with other provisions in the Ombudsman Act.

52. New subsection 14A(3) would provide that the power to obtain access to documents or other records by remote means set out in subsection 14A(1) does not apply in relation to documents or other records for which the Attorney-General has given a certificate under subsection 9(3) of the Ombudsman Act.

53. Subsection 9(3) provides that the Ombudsman is not entitled to require a person to furnish any information concerning a particular matter where the Attorney-General has provided a certificate certifying that the disclosure of information or documents concerning that matter would be contrary to the public interest for the reasons provided for in paragraphs 9(3)(a) to (f).

54. This subsection is intended to ensure that existing limitations on the Ombudsman's ability to require a person to furnish information, or produce documents or other records, that relate to a matter for which the Attorney-General has given a certificate, also apply in circumstances where the Ombudsman is seeking to access documents or other records by remote means under new section 14A. A person would not be required to facilitate remote access to particular documents or other records in relation to which a certificate under subsection 9(3) exists.

55. New subsection 14A(4) would clarify that subsection 14A(1) does not limit the operation of the Ombudsman's powers under section 9 (power to obtain information and documents) or section 14 (power to enter premises) of the Ombudsman Act.

Subsections 14A(5) - (7)

56. New subsection 14A(5) would provide that it is an offence for a person to fail to provide an authorised person with reasonable facilities and assistance for the effective exercise of the remote access power under subsection 14A(1). The maximum penalty for the offence is 10 penalty units. The penalty is the same as that imposed by a similar offence in subsection 33(3) of the Auditor-General Act and the new offence in section 14 of the Ombudsman Act (inserted by item 3 of this Bill).

57. The offence is equivalent to the offence at item 3, with minor updates to effectively reflect the remote access context. Similar to item 3, this offence would consist of the following physical elements:

•

the person is either the principal officer of a department or prescribed authority, or a Commonwealth service provider of a department or prescribed authority under a contract (paragraph 14A(5)(a))

•

an authorised person exercises, or purports to exercise, a power mentioned in subsection 14A(1) (paragraph 14A(5)(b))

•

the person does not provide the authorised person with reasonable facilities and assistance for the effective exercise of the power (paragraph 14A(5)(c)).

58. Whether provision of facilities and assistance is reasonable will turn on the specific circumstances of an investigation. However, it would generally require an agency provide the Ombudsman with a practicable method of accessing records and documents remotely, such as remote log in details or a networked device. Agencies would not be expected to give the Ombudsman access to all systems and databases where these were not relevant to the investigation and it is anticipated that agencies would apply access controls or otherwise partition their systems to ensure that the Ombudsman can only access the information and data relevant to the matter being investigated.

59. New subsection 14A(6) provides that strict liability applies to paragraphs 14A(5)(a) and (b). As a result, the fault elements for the physical elements are:

•

for the circumstance that the person is either the principal officer of a department or prescribed authority or a Commonwealth service provider of a department or prescribed authority under a contract, strict liability applies and no fault element would need to be proved

•

for the circumstance that the authorised person exercises, or purports to exercise, a power mentioned in subsection 14A(1), strict liability applies and no fault element would need to be proved

•

for the conduct of failing to provide the authorised person with reasonable facilities and assistance for the effective exercise of the power, intention would be the fault element.

60. As outlined above in relation to item 3, the first two elements are jurisdictional elements to which no fault applies but which limit the circumstances within which the conduct in paragraph 14A(5)(c) could occur. It is appropriate for strict liability (rather than absolute liability) to apply to these offences as a defence of honest and reasonable mistake of fact should be available in relation to these elements. Importantly, the penalty does not include imprisonment and the fine does not exceed 60 penalty units.

61. The maximum penalty of 10 penalty units is appropriate to enforce the Ombudsman's powers to remotely access documents and other records for the purposes of an investigation under the Ombudsman Act and ensure these powers can be effectively exercised to allow the Ombudsman to obtain material relevant to the investigation.

62. New subsection 14A(7) would provide an offence-specific defence, in addition to the general defences available under the Criminal Code. The defence would apply where providing the authorised person with reasonable facilities and assistance would pose an unacceptable risk to the security of any of the documents or other records held in electronic form, or otherwise to the system where the documents or other records are stored.

63. For example, where documents are of a high classification or of significant sensitivity and held on a system with access controls designed to prevent remote access, it may pose an unnecessary risk to those documents or that system to alter those access controls to provide the Ombudsman with remote access. In these circumstances it would not be unreasonable for an agency to refuse to provide facilities for remote access as it is appropriate for the documents to be viewed in person. This would not preclude the Ombudsman from using their other powers, such as those under section 14, to physically access the documents.

64. It is important that departments, prescribed authorities or Commonwealth service providers cannot attempt to frustrate the Ombudsman's exercise of the remote access power by refusing access on security grounds without sufficient reason. However, there may be legitimate and serious security reasons that mean remote access is not appropriate. In these limited circumstances, the offence-specific defence is intended to be available to protect the security of information, documents and records.

65. A note at the end of subsection 14A(7) would clarify that a defendant bears an evidential burden in relation to this defence. Reversing the evidential burden is consistent with subsection 13.3(3) of the Criminal Code and would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matters comprising the defence exist or do not exist. If the defendant does so, the prosecution would then need to discharge its legal burden to negate that possibility beyond reasonable doubt for the offence to apply.

66. It is appropriate for the defendant to bear the evidential burden as the matters relevant to the defence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. A defendant would have specific knowledge regarding the documents or other records and the systems in which those documents or other records are held, including the nature and magnitude of any risks to the security of those documents, records or systems.

Subsection 14A(8)

67. New subsection 14A(8) would provide that a reference in subsection 14A to an authorised person includes a reference to the Ombudsman and a Deputy Ombudsman.

Application to the IGT Act

68. The amendments in this item would apply to the IGTO through the operation of section 15 of the IGT Act which provides that certain provisions of the Ombudsman Act apply in relation to the IGTO. This would empower the IGTO to use the remote access power in new section 14A of the Ombudsman Act through the operation of paragraph 15(i) of the IGT Act.

Item 5: Subparagraph 19R(3)(b)(xii)

69. Section 19R provides for the application of other provisions in the Ombudsman Act to provisions relating to the Postal Industry Ombudsman (PIO). Subsection 19R(1) provides that the provisions listed in subsection 19R(3) apply to the PIO.

70. This item would amend subparagraph 19R(3)(b)(xii) to omit "14" and substitute "15". Currently, subparagraph 19R(3)(b)(xii) excludes sections 14 to 18 from applying to the PIO. This amendment would mean that section 14 and new section 14A would apply to the PIO. New subsection 19(4A) (inserted by item 6 of this Bill) would limit the application of section 14 and 14A specifically to Australia Post or a wholly owned subsidiary of Australian Post.

Item 6: After subsection 19R(4)

71. This item would insert new subsection 19R(4A) to set out how sections 14 and 14A apply to the PIO. New subsection 19R(4A) would provide that sections 14 and 14A apply to the PIO as if a reference to a department, prescribed authority, or a Commonwealth service provider of a department or prescribed authority under a contract were a reference to Australia Post or a wholly owned subsidiary of Australia Post. Existing paragraph 19R(2)(a) would operate to provide that sections 14 and 14A apply as if a reference to the Ombudsman were a reference to the PIO.

72. In effect, this would allow for the powers to enter premises under section 14 and the remote access power under new section 14A to be exercised by the PIO, but only in respect of Australia Post and its wholly owned subsidiaries.

73. The PIO is authorised to investigate action taken by Australia Post or a registered Private Postal Operator (PPO). Registration as a PPO is on a voluntary basis and must be applied for by the PPO. The existing power to enter premises under section 14 was not extended to the PIO when first established as it was considered it may act as a deterrent to a PPO registering with the PIO.

74. New subsection 19R(4A) will maintain this approach. It is intended to ensure that the new powers and obligations in sections 14 and 14A apply to relevant Commonwealth entities (Australia Post and any wholly owned subsidiary of Australia Post) who are subject to the mandatory jurisdiction of the PIO but not to any PPOs that may be registered with the PIO on a voluntary basis.

Item 7: Paragraph 19ZM(3)(h)

75. Section 19ZM provides for the application of other provisions in the Ombudsman Act to provisions relating to the Overseas Students Ombudsman (OSO). Subsection 19ZM(1) provides that the provisions listed in subsection 19ZM(3) apply to the OSO.

76. Currently paragraph 19ZM(3)(h) provides that sections 12 to 14 apply to the OSO. This item would amend paragraph 19ZM(3)(h) by replacing the reference to section 14 with a reference to section 14A (power to obtain access to documents etc. by remote means, inserted by item 4 of this Bill) to include this new section in the list of provisions that apply to the OSO. This would ensure the new remote access power will be available to the Ombudsman when performing their functions as the OSO. The OSO has an important role in providing assurance to the public that private education providers operate with integrity and accountability in their dealings with overseas students. To support this role, this amendment would ensure the OSO has access to modern powers necessary to undertake full, independent and transparent investigations.

77. In accordance with existing subsection 19ZM(2), the new and amended provisions would apply to the OSO function as if:

•

a reference to a department or prescribed authority were a reference to a private registered provider (paragraph 19ZM(2)(b))

•

a reference to an officer were a reference to an officer within the meaning of Part IIC (paragraph 19ZM(2)(c))

•

a reference to a principal officer were a reference to a principal executive officer within the meaning of Part IIC (paragraph 19ZM(2)(d)).

Item 8: After paragraph 19ZM(3)(k)

78. This item would amend subsection 19ZM(3) by inserting new paragraph 19ZM(3)(ka) to include new section 32 (duty of principal officer etc. to assist Ombudsman, inserted by item 13 of this Bill) in the list of provisions that apply to the OSO.

79. In accordance with existing subsection 19ZM(2), new section 32 would apply to the OSO as if:

•

a reference to a department or prescribed authority were a reference to a private registered provider (paragraph 19ZM(2)(b))

•

a reference to an officer were a reference to an officer within the meaning of Part IIC (paragraph 19ZM(2)(c))

•

a reference to a principal officer were a reference to a principal executive officer within the meaning of Part IIC (paragraph 19ZM(2)(d)).

80. This item is intended to ensure the new statutory duty in section 32 that requires an entity to use its best endeavours to assist the Ombudsman in the performance of the Ombudsman's functions also applies in relation to the performance of the functions of the OSO.

Item 9: After Division 4 of Part IID

81. Part IID of the Ombudsman Act sets out provisions relating to the Private Health Insurance Ombudsman (PHIO). This item would insert new Division 4A into Part IID, consisting of new section 20WA. New section 20WA would set out a power for the PHIO to obtain access to documents and other records by remote means. This provision is equivalent to the power inserted by item 4 with necessary updates to reflect the PHIO's operations.

82. The PHIO has an important role in protecting the interests of private health insurance consumers and providing assurance to the public that the private health insurance industry operates with integrity and accountability. This new provision is intended to support this role by ensuring the PHIO has access to modern information-gathering powers necessary to undertake full, independent and transparent investigations efficiently and consistent with contemporary practices. The new provision would not expand the scope of information that the PHIO can access, which would remain consistent with existing information-gathering powers that can be exercised following entry to premises under sections 20SA and 20TA of the Ombudsman Act. Rather, the new provision would modernise the means by which that information can be accessed.

83. This power is not intended to replace the PHIO's ability to enter into voluntary or consent based arrangements with an entity to access that entity's systems for the purposes of an investigation. It would be open to the PHIO to exercise the powers in new section 20WA at their discretion, including in circumstances where the PHIO considers an entity may not be participating in an investigation in good faith.

Subsection 20WA(1)

84. New subsection 20WA(1) would provide that, for the purposes of verifying evidence provided in relation to a complaint made under Division 3 of Part IID, or conducting an investigation under Division 4 of Part IID, the PHIO may, by remote means:

•

access documents or other records held in electronic form by a person who is a private health insurer or private health insurance broker or a person performing services for, or on behalf of, a private health insurer or private health insurance broker

•

inspect, take extracts from, or make copies of, any such documents or other records.

85. The term 'remote means' is intended to include access by any means that does not require being physically present at the premises of an entity. This may include, for example, access by means of a user account and password or by a device, such as a laptop, provided to the PHIO by the entity for the purpose of accessing the entity's systems other than while physically on premises.

Subsection 20WA(2)

86. New subsection 20WA(2) would provide that, before accessing documents or other records by remote means, the PHIO is required to give the person covered by paragraph 20WA(1)(a) written notice. The notice must specify:

•

the intention of the PHIO to access the documents or other records by remote means (paragraph 20WA(2)(a))

•

the period during which the PHIO will access the documents or other records by remote means (paragraph 20WA(2)(b)).

87. Consistent with the notice requirements at item 4, the requirement in paragraph 20WA(2)(b) to specify the period during which the PHIO will access the documents or other records by remote means may be satisfied in various ways, including by providing a date range or by reference to the occurrence of a particular future event.

88. Multiple individual instances of access may be made within the period specified in the written notice and it is not intended that the PHIO be required to issue a new notice for each specific instance of remote access provided each instance falls within the period of time specified in the original notice.

Subsections 20WA(3) – (5)

89. New subsection 20WA(3) would provide that it is an offence for a person to fail to provide the PHIO with reasonable facilities and assistance for the effective exercise of a power under subsection 20WA(1). The maximum penalty for the offence is 10 penalty units.

90. The inclusion of the offence is intended to ensure that the requirement to provide the PHIO with reasonable facilities and assistance when exercising a power under section 20WA can be effectively enforced.

91. The offence is equivalent to the offence at new subsection 14A(5) (item 8 of the Bill).

92. Similar to item 8, the offence would consist of the following physical elements:

•

the person is either a private health insurer or private health insurance broker, or a person performing services for, or on behalf of, a private health insurer or private health insurance broker (paragraph 20WA(3)(a))

•

the PHIO exercises, or purports to exercise, a power mentioned in subsection 20WA(1) (paragraph 20WA(3)(b))

•

the person does not provide the PHIO with reasonable facilities and assistance for the effective exercise of the power (paragraph 20WA(3)(c)).

93. As noted above, whether the provision of facilities and assistance is reasonable will depend on the nature and circumstances of the investigation. It may require, for example, providing remote log in details or a networked device and access to IT systems with appropriate access controls applied.

94. New subsection 20WA(4) would provide that strict liability applies to paragraphs 20WA(3)(a) and (b). The fault elements for the physical elements are:

•

for the circumstance that the person is either a private health insurer or private health insurance broker, or a person performing services for, or on behalf of, a private health insurer or private health insurance broker, strict liability applies and no fault element would need to be proved

•

for the circumstance that the PHIO exercises, or purports to exercise, a power mentioned in subsection 20WA(1), strict liability applies and no fault element would need to be proved

•

for the conduct of failing to provide the PHIO with reasonable facilities and assistance for the effective exercise of the power, intention would be the fault element.

95. For the same reasons as outlined above in relation to the offence at item 8, applying strict liability to the first two physical elements is appropriate as these are jurisdictional elements for which a defence of honest and reasonable mistake of fact should be available.

96. Likewise, the maximum penalty of 10 penalty units is appropriate to enforce the PHIO's powers to remotely access documents and other records for the purposes of verifying evidence provided in relation to a complaint made under Division 3 or conducting an investigation under Division 4 and to ensure these powers are effective in allowing the PHIO to obtain all relevant material. The penalty is the same as that imposed by the new offences in sections 14 and 14A of the Ombudsman Act (inserted by this Bill) and a similar offence in subsection 33(3) of the Auditor-General Act.

97. New subsection 20WA(5) would provide an offence-specific defence, in addition to the general defences available under the Criminal Code. The defence would provide an equivalent to the defence under new subsection 14A(7) (item 8 of the Bill) for the PHIO. The defence will apply where providing the PHIO with reasonable facilities and assistance would pose an unacceptable risk to the security of any of the documents or other records held in electronic form, or otherwise to the system where the documents or other records are stored.

98. For example, where databases used by an insurer or broker are incompatible with systems of the Ombudsman, it may pose an unacceptable risk to the security of these systems to provide access remotely.

99. A note at the end of subsection 20WA(5) would clarify that a defendant bears an evidential burden in relation to this defence. This is consistent with subsection 13.3(3) of the Criminal Code and would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matters comprising the defence exist or do not exist. If the defendant does so, the prosecution would then need to discharge its legal burden to negate that possibility beyond reasonable doubt for the offence to apply.

28. It is appropriate for the defendant to bear the evidential burden as the matters relevant to the defence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. A defendant would have specific knowledge regarding the documents or other records and the systems in which those documents or other records are held, including the nature and magnitude of any risks to the security of those documents, records or systems.

Item 10: After paragraph 20ZK(1)(d)

100. Section 20ZK provides for the application of other provisions in the Ombudsman Act to provisions relating to the PHIO. Subsection 20ZK(1) provides that the provisions listed in this subsection apply to the PHIO and subsection 20ZK(2) sets out how those provisions apply.

101. This item would amend subsection 20ZK(1) by inserting new paragraph 20ZK(1)(da) to include new section 32 (duty of principal officer etc. to assist Ombudsman, inserted by item 13 of this Bill) in the list of provisions that apply to the PHIO.

102. This item is intended to ensure the new statutory duty in section 32 for an entity to use its best endeavours to assist the Ombudsman in the performance of the Ombudsman's functions also applies in relation to the performance of the functions of the PHIO.

103. Detailed provisions setting out who this statutory duty is imposed in the context of the PHIO are contained in item 11 of this Bill.

Item 11: After paragraph 20ZK(2)(b)

104. This item would amend subsection 20ZK(2) by inserting new paragraph 20ZK(2)(ba). New paragraph 20ZK(2)(ba) sets out how new section 32 (duty of principal officer etc. to assist Ombudsman, inserted by item 13 of this Bill) applies in relation to the PHIO. It provides that new section 32 applies as if:

•

a reference to a department or prescribed authority were a reference to a private health insurer or private health insurance broker (subparagraph 20ZK(2)(ba)(i))

•

a reference to a principal officer were:

o

in relation to a private health insurer, a reference to the individual primarily responsible for the management of the private health insurer (subparagraph 20ZK(2)(ba)(ii))

o

in relation to a private health insurance broker that is an individual, a reference to that individual (subparagraph 20ZK(2)(ba)(iii))

o

in relation to a private health insurance broker that is not an individual, a reference to the individual primarily responsible for the management of the private health insurance broker (subparagraph 20ZK(2)(ba)(iv))

•

a reference to an officer were:

o

in relation to a private health insurer, a reference to a person employed or engaged by, or that is otherwise exercising powers or performing functions for or on behalf of, the private health insurer (subparagraph 20ZK(2)(ba)(v))

o

in relation to a private health insurance broker, a reference to a person employed or engaged by, or that is otherwise exercising powers or performing functions for or on behalf of, the private health insurance broker (subparagraph 20ZK(2)(ba)(vi))

105. This item is intended to clarify who within a private health insurance related entity is subject to the duty in new section 32 to use their best endeavours, or ensure the entity uses its best endeavours, to assist the PHIO in the performance of the PHIO's functions.

Item 12: After subsection 20ZS(3)

106. Section 20ZS provides for the application of other provisions in the Ombudsman Act to provisions relating to the VET Student Loans Ombudsman (VSLO).

107. This item would insert new subsection 20ZS(3A) to set out how new section 14A (power to obtain access to documents etc. by remote means, inserted by item 4 of this Bill) applies in relation to the VSLO. It provides that new section 14A applies as if:

•

a reference in subsections 14A(1) and (2) to a department, a prescribed authority, or a Commonwealth service provider of a department or prescribed authority were a reference to a VET student loan scheme provider (paragraph 20ZS(3A)(a)

•

paragraph 14A(6)(a) were omitted and substituted with:

"the person is the VET student loan principal executive officer of a VET student loan scheme provider".

108. The VSLO has an important role in providing assurance to the public that VET student loans scheme providers operate with integrity and accountability in their dealings with VET students. This item is intended to support this role by ensuring the VSLO has access to modern powers under new section 14A that are necessary to undertake full, independent and transparent investigations.

Item 13: Before section 33

109. This item would insert new section 32 which would impose a statutory duty on various persons to use their best endeavours to assist the Ombudsman in the performance of the Ombudsman's functions.

110. New subsection 32(1) would provide that a principal officer of a department or prescribed authority must ensure the department or prescribed authority uses its best endeavours to assist the Ombudsman in the performance of the Ombudsman's functions.

111. New subsection 32(2) would provide that an officer of a department or prescribed authority must use the officer's best endeavours to assist the Ombudsman in the performance of the Ombudsman's functions.

112. The introduction of this statutory duty is intended to reinforce the responsibility of agency heads to ensure their agency acts in good faith and proactively assists the Ombudsman in the performance of their functions. It is also intended to make it clear that responsibility to assist the Ombudsman rests with every member of the public service. The statutory duty will apply in relation to the performance by the Ombudsman of any of their functions, including when making preliminary inquiries, conducting investigations, or following up on the implementation of their recommendations.

113. Failure by a principal officer or officer of a department or prescribed authority may be a breach of the APS Code of Conduct in section 13 of the Public Service Act 1999 and could attract sanctions in accordance with section 15 of that Act.

114. This item would implement the Government's response to recommendation 21.1 of the report of the Royal Commission. The report recommended imposing a statutory duty on departmental secretaries and agency chief executive officers to ensure their department or agency uses their best endeavours to assist the Ombudsman in an investigation. The report also recommended a corresponding duty be imposed on Commonwealth public servants to use their best endeavours to assist the Ombudsman in an investigation.

115. The Government's response to the report of the Royal Commission also committed to introducing equivalent statutory duties in relation to the IGTO. Item 16 of this Bill makes amendments to the IGT Act to provide that new section 32 of the Ombudsman Act applies to the IGTO.

116. The statutory duty at new section 32 would be deemed to apply to all other statutory offices held by the Commonwealth Ombudsman, requiring all bodies within jurisdiction, as well as their staff, to use their best endeavours to assist the Ombudsman in the performance of the Ombudsman's functions.

117. Each of these statutory offices play an important role in ensuring that complaints about the actions of government and key private industries, are resolved effectively and providing assurance to the public that these sectors are operating with integrity and accountability. Extending the statutory duty to assist the Ombudsman to each of these statutory offices is intended to support the performance of these important functions by ensuring that there is clear responsibility on the part of bodies within jurisdiction to provide assistance to the Ombudsman.

118. The statutory duty will be applied as follows:

•

Defence Force Ombudsman (DFO) – subsection 19F(1) applies Part IV of the Ombudsman Act (including new section 32) to the DFO. This provision would operate to require a principal officer or officer of a department or a prescribed authority, including the Department of Defence and the Australian Defence Force, to use their best endeavours to assist the DFO.

•

Postal Industry Ombudsman (PIO) – subsections 19R(2) and (3) apply Part IV of the Ombudsman Act (including new section 32) to the PIO. These provisions would operate to require a principal officer or officer of Australia Post or a registered private postal operator to use their best endeavours to assist the PIO.

•

Overseas Students Ombudsman (OSO) – subsection 19ZM(2) and new paragraph 19ZM(3)(ka) would apply new section 32 to the OSO. These provisions would operate to require a principal executive officer or an officer of a private registered provider to use their best endeavours to assist the OSO.

•

Private Health Insurance Ombudsman (PHIO) – new paragraphs 20ZK(1)(da) and 20ZK(2)(ba) would apply new section 32 to the PHIO. These provisions would operate to require principal officers, or individuals primarily responsible for the management, of private health insurers or private health insurance brokers, and persons employed, engaged by or otherwise exercising powers or functions on behalf of a private health insurer or private health insurance broker to use their best endeavours to assist the PHIO.

•

VET Student Loans Ombudsman (VSLO) – subsection 20ZS(1) and paragraph 20ZS(2)(k) apply part IV of the Ombudsman Act (including new section 32) to the VSLO. These provisions would operate to require a principal executive officer or officer of a VET student loan scheme provider to use their best endeavours to assist the VSLO.

Item 14: At the end of section 37

119. Section 37 of the Ombudsman Act protects a person from civil proceedings in respect of loss, damage or injury of any kind suffered by another person as a result of:

•

making a complaint under the Ombudsman Act (paragraph 37(a))

•

making a statement to, or furnishing information or a document to an officer of the Ombudsman, whether or not the statement was made or the information or document furnished because it was required to be given by the operation of section 9 or section 11A (paragraph 37(b)).

120. The immunity only applies if the complaint was made, or the statement, information or document given, in good faith.

121. This item would amend section 37 by inserting new paragraph 37(c) to provide that civil proceedings do not lie against a person for the provision (in good faith) of reasonable facilities and assistance for the effective exercise of a power under section 14 (power to enter premises) or section 14A (power to obtain access to documents etc. by remote means).

122. This amendment is intended to ensure that the protections against civil suit for persons who, in good faith, cooperate with the Ombudsman in the exercise of the Ombudsman's powers or the performance of the Ombudsman's functions extend to circumstances where that cooperation takes the form of providing reasonable facilities and assistance under sections 14 and 14A.

Part 2 – Other Amendments

Inspector-General of Intelligence and Security Act 1986

Item 15: At the end of section 14

123. Section 14 of the IGIS Act provides the IGIS a power to make preliminary inquiries with the heads of intelligence agencies for the purposes of determining whether the IGIS is authorised to inquire into an action or should inquire into an action. This item would insert:

•

a new subheading 'Inspector-General entitled to all reasonable facilities and assistance', and

•

new subsection 14(4).

124. The new subheading is intended to improve readability by clarifying the structure of section 14.

125. New subsection 14(4) would clarify that the IGIS, when making inquiries of the head of an intelligence agency under section 14, is entitled to all reasonable facilities and assistance that the head of the agency is capable of providing.

126. The IGIS Act imposes an obligation on the heads of intelligence agencies to provide all reasonable facilities and assistance to the IGIS when they are undertaking inspections (sections 9A). This amendment is intended to ensure an equivalent obligation is extended to assist the IGIS when undertaking preliminary inquiries and to improve consistency of the obligations on agency heads in relation to the powers in the Act.

Inspector-General of Taxation Act 2003

Item 16: After paragraph 15(i)

127. Section 15 of the IGT Act provides that certain provisions of the Ombudsman Act apply in relation to the IGTO and sets out how those provisions apply.

128. This item would insert a new paragraph 15(ia) that would provide that new section 32 of the Ombudsman Act (inserted by item 13 of this Bill) applies to the IGTO.

129. This item would implement the Government's response to recommendation 21.1 of the Report of the Royal Commission. The Report recommended imposing statutory duties on departmental secretaries, agency chief executive officers and Commonwealth public servants to use their best endeavours to assist the Ombudsman in an investigation. The Government's response accepted this recommendation and further committed to introducing equivalent statutory duties in relation to the IGTO.

130. The amendments to section 14 (entry to premises) and new section 14A (power to obtain access to documents etc. by remote means) of the Ombudsman Act inserted by this Bill (items 1-4) will apply in relation to the IGTO through the operation of existing paragraph 15(i) of the IGT Act. Paragraph 15(i) provides that sections 9 to 19 (other than subsections 16(4) and (5)) of the Ombudsman Act apply to the IGTO.

Part 3 – Technical Amendments

Ombudsman Act 1976

Item 17: Paragraph 6(6)(b)

131. This item would omit "made to the Australian Communications and Media Authority" and substitute "made to the ACMA" in paragraph 6(6)(b). As 'ACMA' is defined in section 3 of the Ombudsman Act, it is not necessary to include the full name in this paragraph. This amendment is intended to improve consistency and readability of section 6.

Item 18: Paragraph 6(6)(b)

132. This item would omit "that Authority" (in reference to the ACMA) and substitute "the ACMA" in paragraph 6(6)(b). This is a technical amendment consequential to the amendment to paragraph 6(6)(b) in item 17 and intended to improve consistency and readability of section 6.

Item 19: Subsection 6(6)

133. This item would omit "complaint to the Australian Communication and Media Authority" and substitute "complaint to the ACMA" in subsection 6(6). This amendment is intended to improve consistency and readability of section 6.

Item 20: Subsection 6(7)

134. This item would omit "Authority" (referring to the ACMA) wherever it occurs in subsection 6(7) and substitute "ACMA". This amendment is intended to improve consistency and the readability of section 6.

Item 21: Paragraph 19ZM(3)(m)

135. Section 19ZM provides for the application of other provisions in the Ombudsman Act to provisions relating to the OSO.

136. This item would repeal and substitute paragraph 19ZM(3)(m). Paragraph 19ZM(3)(m) currently provides that section 34 of the Ombudsman Act applies in relation to the OSO other than subsections 34(1) to (2A). The substituted paragraph would provide that only sections 34(2B), (5) and (7) apply in relation to the OSO.

137. This is a technical amendment intended to improve the clarity and readability of section 19ZM and does not substantively change the provisions that apply in relation to the OSO.

Item 22: Paragraph 19ZM(3)(p)

138. This item would omit a reference to subsection 35A(3A) from paragraph 19ZM(3)(p), which currently provides that section 35A other than subsection (3A) applies to the OSO. The reference is no longer relevant as subsection 35A(3A) was repealed by the Statute Law Revision Act 2011.

Item 23: Subsection 19ZM(4) (cell at table item 6, column 2)

139. Section 19ZM provides for the application of other provisions in the Ombudsman Act to provisions relating to the OSO.

140. This item would repeal and substitute the cell at item 6, column 2 of the table in subsection 19ZM(4). Item 6 of the table currently provides that subsection 35(6A) of the Ombudsman Act applies in relation to the OSO as if a reference in that provision to paragraph 6(4A)(e), (4D)(e) or (18)(d) were a reference to paragraph 19ZK(4)(b). The substituted cell would omit references to paragraphs 6(4A)(e) and (18)(d), referring only to paragraph 6(4D)(e).

141. This references to paragraphs 6(4A)(e) and 18(d) are no longer relevant as these paragraphs were repealed by the Freedom of Information (Reform) Act 2010 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 (NACC (CTP) Act) respectively.

Item 24: Paragraph 20ZK(2)(d)

142. Section 20ZK provides for the application of other provisions in the Ombudsman Act to provisions relating to the PHIO.

143. This item would omit the reference to paragraph 6(18)(d) from paragraph 20ZK(2)(d). This reference is no longer relevant as paragraph 6(18)(d) was repealed by the NACC (CTP) Act.

Item 25: Subsection 20ZS(1) (table item 9, column 2)

144. Section 20ZS provides for the application of other provisions in the Ombudsman Act to provisions relating to the VSLO.

145. This item would omit the reference to paragraph 6(18)(d) from the cell at item 9 column 2 of the table in subsection 20ZS(1). This reference is no longer relevant as paragraph 6(18)(d) was repealed by the NACC (CTP) Act.

Item 26: Subsection 20ZS(3)

146. Subsection 20ZS(3) provides for the application of section 14 (the power to enter premises) to the OSO.

147. This item would omit "14(a)" and substitute "14(1)(a)". This is a technical amendment to correct an error in the subsection and improve readability.

Item 27: Subsection 35(6A)

148. Section 35 sets out confidentiality requirements for Ombudsman officers including, for example, that an officer cannot make a recording of, or divulge or communicate to any person, any information they acquired by reason of their being an officer. Subsection 35(6A) clarifies that officers are not prevented from giving information or documents under various other provisions in the Ombudsman Act.

149. This item would omit the reference to paragraph 6(18)(d) from subsection 35(6A). This reference is no longer relevant as paragraph 6(18)(d) was repealed by the NACC (CTP) Act.

Part 4 – Contingent amendment

Division 1 – Amendments contingent on the Universities Accord (National Student Ombudsman) Bill 2024

Ombudsman Act 1976

Item 28: After paragraph 21AZC(2)(f)

150. Section 21AZC of the Universities Accord (National Student Ombudsman) Bill 2024 (NSO Bill) sets out how certain provisions of the Ombudsman Act would apply to the National Student Ombudsman.

151. This item would include a reference to new section 14A of the Bill (other than subsection 14A(3)) in subsection 21AZC(2) of the NSO Bill. The effect of this amendment would be that the power to obtain access to documents and other records by remote means in new section 14A is deemed to apply to, and able to be exercised by, the National Student Ombudsman.

152. The NSO would have an important role in providing assurance to the public that higher education providers operate with integrity and accountability in their dealings with students. To support this role, this amendment would ensure that the NSO would have access to modern powers necessary to undertake full, independent and transparent investigations.

153. New subsection 14A(3) would not be deemed to apply to the National Student Ombudsman. This subsection provides that the remote access power is not able to be exercised in relation to documents or other records for which the Attorney-General has given a public interest certificate under subsection 9(3). It is unnecessary to deem this subsection to apply to the National Student Ombudsman as section 9, and consequently the certificate provision under subsection 9(3), does not apply to the National Student Ombudsman.

Item 29: After subsection 21AZC(8)

154. This item would insert new paragraph (8A) into section 21AZC of the NSO Bill which would set out necessary additional modifications to new section 14A, as applied to the National Student Ombudsman.

155. This item would provide that new subsection 14A(4) applies to the National Student Ombudsman as if a reference to the operation of section 9 of the Ombudsman Act were a reference to the operation of section 21AZA of the NSO Bill.

156. New subsection 14A(4) provides that the remote access power does not limit the operation of other information-gathering powers under sections 9 or 14 of the Ombudsman Act. Section 9 of the Ombudsman Act is not deemed by the NSO Bill to apply to the National Student Ombudsman. Instead, the National Student Ombudsman would have equivalent information-gathering powers to section 9 under new section 21AZC of the NSO Bill. This item ensures that the remote access power does not limit the operation of the National Student Ombudsman's information-gathering powers under new section 21AZC.

Division 2 – Amendment contingent on the Intelligence Services Legislation Amendment Bill 2023

Ombudsman Act 1976

Item 30: Subsection 35(5)

157. Section 35 sets out confidentiality requirements for officers of the Office of the Commonwealth Ombudsman, including that an officer cannot make a recording of, or divulge or communicate to any person, any information they acquired by reason of their being an officer other than in a range of circumstances outlined in section 35 (including where disclosure is connected to the exercise of powers and performace of functions of the Ombudsman). Subsection 35(5) outlines additional restrictions on disclosure of certain information where the Attorney-General has provided to the Ombudsman a certificate relating to that information.

158. Section 35(5) is intended to pick up the same circumstances for issuing a certificate as exist under subsection 9(3) of the Ombudsman Act. Under subsection 9(3), the Attorney-General can provide a certificate certifying that the disclosure of information or documents concerning a matter would be contrary to the public interest for the reasons provided for in paragraphs 9(3)(a) to (f). Paragraph 9(3)(f) applies in circumstances where disclosure of information, documents or records in the possession of, or under the control of, the National Anti-Corruption Commission to the Ombudsman would be contrary to the public interest because it would endanger the life of a person or create a risk of serious injury to a person.

159. Subsection 35(5) includes references to paragraphs 9(3)(a) through (e) but erroneously omits reference to paragraph 9(3)(f). This item is intended to correct this error and clarify that the additional restrictions on disclosure of information in subsection 35(5) also apply to information in relation to which a certificate has been provided by the Attorney-General certifying that disclosure of that information would be contrary to the public interest for the reasons outlined in paragraph 9(3)(f).

Part 5 – Application provisions

Item 31: Application provisions

160. This item sets out when various amendments made by this Bill apply in relation to investigations and complaints.

161. Subitem 1 provides that the amendments made by items 1-7, 9 (so far as it relates to an investigation), 12 and 14 of Schedule 1 to the Bill apply in relation to:

•

investigations starting after the commencement of item 31, and

•

investigations that started before the commencement of item 31 but that had not been completed before that commencement.

162. The effect of this item is that the new and enhanced powers of the Ombudsman can be exercised in relation to any investigations on foot at commencement or started after commencement. For example, the power to obtain access to documents or other records by remote means in new subsection 14A (inserted by item 4 of this Bill) could be exercised in relation to investigations that are started after the commencement of the Bill as well as in relation to any investigation that had been initiated but not yet been finalised before commencement.

163. Subitem 2 provides that the amendment made by item 9 of the Bill (so far as it relates to a complaint) applies in relation to:

•

a complaint made after the commencement of item 31, and

•

a complaint made before the commencement of item 31 but not dealt with before that commencement.

164. The effect of this item is that the power for the PHIO to access documents or other records by remote means in new subsection 20WA (inserted by item 9 of this Bill) could be exercised in relation to a complaint made under Division 3 of Part IID regardless of whether the complaint was made before or after the commencement of this Bill, so long as the complaint had not been finalised before commencement.