Purpose of the Bill
The purpose of the Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024 (the Bill) is to amend the Ombudsman Act 1976 and other legislation to enhance the oversight powers of the Ombudsman and Inspector-General of Taxation and Taxation Ombudsman (IGTO) and accordingly, implement recommendations 21.1 and 21.2 of the final report of the Royal Commission into the Robodebt Scheme (the Royal Commission).
Structure of the Bill
The Bill consists of one Schedule with 5 parts.
- Part 1 contains the main amendments to the Ombudsman Act, including:
- expanded powers to obtain information
- a new statutory duty on agency heads and their staff to assist the Ombudsman
- provisions extending the new and enhanced duties and powers to apply to all statutory offices held by the Ombudsman.
- Part 2 consists of amendments to other legislation, notably:
- Part 3 contains technical amendments aimed at clarifying provisions and improving the readability of the Ombudsman Act.
- Part 4 contains contingent amendments to the Ombudsman Act, notably:
- Part 5 concerns the application of certain amendments made by the Bill, ensuring the new powers can be exercised in relation to investigations on foot at commencement.
Background
The Ombudsman
The Commonwealth Ombudsman was established to investigate complaints concerning administrative actions of Commonwealth officials and agencies (see the Explanatory Memorandum to the Ombudsman Bill 1976). Additional functions include statutory compliance inspections and reporting.
The Ombudsman has jurisdiction over all Federal government entities (including prescribed authorities) and their contracted service providers, subject to some specific statutory exclusions, such as the Australian Taxation Office and intelligence agencies. The Ombudsman holds a range of statutory offices, including as the Defence Force Ombudsman and the Overseas Students Ombudsman.
The IGTO has a similar role investigating taxation administration decisions, as well as systems relating to tax administration.
Robodebt Royal Commission
The Royal Commission was established on 18 August 2022 to inquire into the establishment, design and implementation of the debt assessment and recovery scheme known as Robodebt (the Scheme). The final report (the Report) was presented on 7 July 2023 (see volume 1, volume 2 and volume 3).
In considering the effectiveness of the oversight role of the Ombudsman in response to complaints about the Scheme (volume 2, chapter 21), the Royal Commission observed the office ‘could have played an important part’ in stopping the Scheme, yet was unable to fulfill this over 3 years of investigations (volume 2, p 599).
The Royal Commission made 57 recommendations (including one closing observation), 2 of which are relevant to the Bill. On 13 November 2023, the Government response to the Royal Commission into the Robodebt Scheme accepted or accepted in principle the 56 recommendations, but not the closing observation. Some recommendations have already been acted upon, such as the enactment of the new Administrative Review Tribunal Act 2024.
Recommendation 21.1: Statutory duty to assist
The Royal Commission noted the Ombudsman’s power to obtain information and make inquiries of the principal officer of a Department or of a prescribed authority under subsection 8(3) of the Ombudsman Act, for which there is no sanction for non-compliance. The Ombudsman also has the power to require information or the production of documents by notice given under section 9 of the Ombudsman Act. The failure to comply with a notice under section 9 is an offence. However, the Ombudsman did not issue any requests for information under that section (volume 2, p 576).
The Royal Commission was critical that the (then) Department of Human Services (DHS) and the Department of Social Services (DSS) provided incomplete responses to the Ombudsman and withheld key documents (volume 2, p 576, see also the Ombudsman’s statement, paragraphs [38]-[40]). Given ‘the readiness to conceal and mislead exhibited by certain departmental staff’ (volume 2, p 581), the Royal Commission recommended a statutory duty in the following terms:
Recommendation 21.1: Statutory duty to assist
A statutory duty be imposed on departmental secretaries and agency chief executive officers to ensure that their department or agency use its best endeavours to assist the Ombudsman in any investigation concerning it, with a corresponding statutory duty on the part of Commonwealth public servants within a department or agency being investigated to use their best endeavours to assist the Ombudsman in the investigation.
Recommendation 21.2: Another power to obtain information
The Royal Commission noted that section 14 of the Ombudsman Act enables an ‘authorised person’ of the Ombudsman’s Office to enter premises occupied by a department to carry on an investigation in that place. However, there is no power equivalent to section 33 of the Auditor‑General Act 1997, which compels the occupier to provide the authorised person with ‘all reasonable facilities for the effective exercise of powers’.
The Royal Commission considered the experience of the Scheme suggested good faith cooperation could not always be assumed. In that context, an additional power was appropriate for the ‘exceptional case where a department or agency sets out to thwart the investigation’ (volume 2, p 582):
Recommendation 21.2: Another power to obtain information
The Ombudsman Act be amended to confer on the Ombudsman a power in equivalent terms to that in s 33(3) of the Auditor-General Act.
Policy position of non-government parties/independents
At the time of writing no statements have been made by non-government parties or independents in respect of the Bill. The Greens previously welcomed the Government’s in-principle acceptance of the Royal Commission’s recommendations.
Key issues and provisions
Enhanced information gathering powers
Power to enter premises
The Bill amends section 14 of the Ombudsman Act, which enables an ‘authorised person’ to enter premises occupied by a department to carry on an investigation. Item 2 of Schedule 1 repeals and replaces subsection 14(4). Under proposed subsection 14(4) there will be an explicit power for an authorised person (which includes the Ombudsman or Deputy Ombudsman under existing subsection 14(6)) who enters a place to take extracts, or make copies of, documents or other material accessed. The current requirement that a reasonable time of day is arranged with the body being investigated will no longer apply.
Proposed subsections 14(5A) and (5B) (inserted by item 3 of Schedule 1) create an offence for a person to fail to provide an authorised person with reasonable facilities and assistance in relation to the power to enter premises. Strict liability applies to two elements of the offence.
Power to access documents remotely
Proposed section 14A (inserted by item 4 of Schedule 1) confers an additional power on the Ombudsman to obtain access to documents or other records by remote means. According to the Explanatory Memorandum, this would supplement existing powers and practices, such as in circumstances ‘where an agency may not be participating in good faith’ (paragraph [40]). Item 12 inserts proposed subsection 20ZS(3A) into the Ombudsman Act to set out how proposed section 14A applies to the VET Student Loans Ombudsman.
Proposed subsections 14A(5) and (6) operate so that it is an offence for a person to fail to provide an authorised person with reasonable facilities and assistance in relation to the power. Strict liability applies to two elements of the offence.
Items 6 and 7 of the Bill amend the Ombudsman Act so that the powers in sections 14 and 14A are available in respect of the statutory offices of the Postal Industry Ombudsman and the Overseas Students Ombudsman. Item 9 of the Bill amends the Ombudsman Act to extend equivalent powers to access documents remotely to the Private Health Insurance Ombudsman. The powers in sections 14 and 14A will apply to the IGTO due to the operation of existing paragraph 15(i) of the Inspector-General of Taxation Act 2003.
Offence provisions
As above, the Bill creates offences (items 3, 4 and 9 of Schedule 1), where strict liability applies to certain elements of the offences. The Explanatory Memorandum notes these offences engage human rights in respect of the presumption of innocence and prohibition on interference with privacy, but suggests that, to the extent the Bill would limit the rights, those limitations are reasonable, necessary and proportionate (pp 5-9).
Statutory duty to assist
Proposed subsection 32(1) of the Ombudsman Act (inserted by item 13 of Schedule 1) imposes a duty on a principal officer of a department or prescribed authority to ensure the Department or prescribed authority uses its best endeavours to assist the Ombudsman in the performance of the Ombudsman’s functions. Proposed subsection 32(2) imposes a corresponding duty on staff to assist the Ombudsman. Item 16 of Schedule 1 to the Bill provides that proposed section 32 also applies to the IGTO.
The proposed section is more expansive than that anticipated by recommendation 21.1, insofar as the statutory duty under the Bill extends to all of the Ombudsman’s functions, rather than being confined to an investigation. According to the Explanatory Memorandum, the Government anticipates this might extend to situations such as preliminary inquiries and implementation of recommendations (paragraph [112]).
Concluding comments
The Bill appears to be largely a straightforward implementation of two discrete recommendations of the Royal Commission. In some respects, it goes beyond these, notably the expanded statutory duty to assist in all the Ombudsman’s functions. It is anticipated that the expanded information powers will not change how the majority of investigations are handled, but rather provide additional options in situations where agencies are not acting in good faith.