Chapter 1Introduction and key issues

1.1On 21 November 2024, the Senate referred the provisions of the Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 30 January 2025.[1]

1.2The referral of the bill followed a recommendation of the Senate Standing Committee for the Selection of Bills.[2] Appendix 3 to that report called for the inquiry to scrutinise the legislation.[3]

Conduct of the inquiry and acknowledgement

1.3The committee advertised the inquiry on its website and invited organisations and individuals to make submissions by 20 December 2024. The committee received eight submissions, which are listed at Appendix 1. The committee resolved not to hold a public hearing for this inquiry and to report to the Senate ‘on the papers’. The committee thanks those individuals and organisations who made submissions.

Structure of the report

1.4The report comprises one chapter that outlines the background to the inquiry, provides an overview of the bill, discusses the key issues raised by submitters, and sets out the committee’s views and recommendations.

Purpose of the bill

1.5The bill would amend the Ombudsman Act 1976 (Ombudsman Act) and the Inspector-General of Taxation Act 2003 (IGT Act) to implement recommendations 21.1 and 21.2 of the Report of the Royal Commission into the Robodebt Scheme (Royal Commission report). The bill would enhance the oversight powers of the Commonwealth Ombudsman (Ombudsman) and the Inspector-General of Taxation and Taxation Ombudsman (IGTO). It would also introduce a statutory duty to assist those offices in performing their functions.

Background

1.6On 18 August 2022, the government established the Royal Commission into the Robodebt Scheme (Royal Commission). The Royal Commission presented its final report on 7 July 2023.[4]

1.7The Royal Commission report stated that in 2016 and 2017 the Ombudsman received a large volume of complaints about the Robodebt Scheme.[5] As a result of those complaints, the Ombudsman conducted two investigations into the scheme.[6]

1.8The Royal Commission found that the Department of Human Services (DHS) and the Department of Social Services (DSS) did not properly engage with the Ombudsman’s investigations. The Royal Commission report detailed how those:

…departments acted to deceive the Ombudsman’s office, avoid effective scrutiny of the Scheme and, in doing so, thwart one of the best opportunities that existed to bring the Scheme to an end.[7]

1.9The Royal Commission explained that officers from those departments:

…engaged in behaviour designed to mislead and impede the Ombudsman in the exercise of his functions. This, coupled with deficiencies in the Ombudsman’s own processes, had the consequence of diluting the effectiveness of the investigation. The illegality of the Scheme was not brought to light. The Scheme continued for years after the Ombudsman’s work was done.[8]

1.10The Hon Mark Dreyfus KC MP, Attorney-General, outlined the main findings of the Royal Commission:

The report of the robodebt royal commission made it clear. Strong and effective oversight mechanisms are fundamental to safeguard the community in their dealings with government. Trust in government depends on this.

The robodebt royal commission concluded that the robodebt scheme was a crude and cruel mechanism, neither fair nor legal.[9]

1.11The Attorney-General argued that stronger oversight measures would help to ensure that similar maladministration does not occur again:

This bill delivers on recommendations of the robodebt royal commission. It will bolster the powers and capabilities of oversight agencies to ensure a failure like the robodebt scheme can never happen again, because central to the institutional checks and balances that could have made a difference to the outcomes of the robodebt scheme are independent and external oversight bodies.

Oversight makes our institutions stronger. Oversight makes our democracy better. And most importantly, oversight keeps government agencies accountable to the people they serve.[10]

1.12In commending the bill to the House, the Attorney-General emphasised:

The public must be confident that government agencies are acting with integrity and accountability and that they act in a manner that is lawful, fair and transparent.

The government has committed to improve this public trust.

This bill bolsters the powers and capability of oversight bodies to ensure that government agencies are accountable.[11]

1.13The government has implemented most of the recommendations made by the Royal Commission and ‘work to implement the Government’s response to other recommendations is well advanced and underway’.[12]

Recommendation 21.1: Statutory duty to assist with Ombudsman investigations

1.14The Ombudsman Act does not require departments or agencies to respond to requests for information from the Ombudsman and does not set out what would happen in the event of non-compliance with such a request. The Royal Commission suggested that it would be reasonable to assume public servants would provide the Ombudsman with all relevant information when requested to do so.[13]

1.15The Royal Commission report observed:

The Ombudsman Act contains no sanction for non-compliance with a request made under s 8(3). Section 36 of the Act makes it an offence to refuse or fail without reasonable excuse to furnish information or to answer a question or produce a document when required pursuant to the Act, but in this case the Ombudsman’s Office was making requests for information, rather than requiring its provision.[14]

1.16During the Ombudsman’s investigations into the Robodebt Scheme, ‘[b]oth DHS and DSS provided incomplete responses to the Ombudsman’s various s 8 notices and withheld key documents that fell within the scope of the requests’.[15]

1.17If it has reason to believe that a person has information relevant to an investigation, the Ombudsman has the power to issue a formal notice that requires a person to provide information, produce documents, or answer questions relating to that investigation.[16] Penalties may apply if that notice is not complied with.[17]

1.18The Royal Commission observed that while the Ombudsman requested information from DHS and DSS, it did not issue any formal notice that required the provision of information, documents, or answers to questions.[18] The Royal Commission suggested that the Ombudsman had ‘assume[d] that public servants would comply with the [Australian Public Service] Code of Conduct’ and comply with requests for information in good faith.[19]

1.19The Royal Commission suggested that during the Ombudsman’s investigations into the Robodebt Scheme, some departmental staff had displayed a ‘readiness to conceal and mislead’. To avoid this behaviour from occurring again, the Royal Commission recommended:

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.[20]

1.20In its response to the Royal Commission, the government stated:

The Government agrees that a clearly stated statutory duty, imposed on departmental secretaries and agency chief executive officers, to ensure that their department or agency use its best endeavours to assist the Ombudsman would reinforce the responsibility on heads of agencies to ensure their agency engages in good faith and proactively assists the Commonwealth Ombudsman.

The Government agrees that a corresponding statutory duty on Commonwealth public servants within a department or agency being investigated to use their best endeavours to assist the Commonwealth Ombudsman would ensure the responsibility to assist is clearly individually borne by each of those responsible.

The Government also recognises the importance of the Inspector-General of Taxation and Taxation Ombudsman in providing assurance to the community that taxation laws are being administered with integrity. The Government supports also introducing equivalent statutory duties to investigations conducted by the IGTO.[21]

1.21In introducing the bill, the Attorney-General, the Hon Mark Dreyfus KC MP, stated that the bill goes further than the recommendation:

The bill extends the statutory duty to assist the Ombudsman to all of the Ombudsman’s functions.

This means that agencies will be required to assist regardless of whether the Ombudsman is making preliminary inquiries, conducting an investigation, or following up on implementation of its recommendations.[22]

Recommendation 21.2: Enhanced powers to obtain information

1.22While conducting its investigation, the Ombudsman has the power to enter premises occupied by the department, authority, or Commonwealth service provider subject to that investigation.[23]

1.23The Royal Commission suggested this power is similar to that available to the Auditor-General. Unlike the power available to the Auditor-General, the Ombudsman is not able to compel officers of the department or agency under investigation ‘to provide the authorised person with all reasonable facilities for the effective exercise of powers’.[24]

1.24Mr Iain Anderson, Commonwealth Ombudsman, informed the Royal Commission that the Auditor-General uses these powers ‘to directly access the IT systems of agencies’. His office does not have a legislated power to access IT systems to check that departments and agencies under investigation have provided all relevant documents.[25]

1.25The Royal Commission suggested the Ombudsman should be provided with a similar power to the Auditor-General as public servants may not always assist with investigations in good faith:

A power equivalent to that in s 33(3) of the Auditor-General Act would not, of course, be necessary if one could assume good faith participation in Ombudsman investigations. The departmental responses to the 2017 own motion investigation make it abundantly clear that good faith cooperation cannot be assumed, although it might reasonably be expected, and that greater power is needed in what one would hope would be the exceptional case where a department or agency sets out to thwart the investigation through non-compliance or deliberate misleading. In the Commission’s view, the Ombudsman should be given the additional power.[26]

1.26The Royal Commission recommended that ‘[t]he 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’.[27]

1.27In its response to the Royal Commission report, the government recognised that providing the Ombudsman with a similar investigatory power to that provided to the Auditor-General:

…would ensure the Ombudsman is not dependent upon agencies to undertake searches and provide documents and information, and will complement the Ombudsman’s existing powers to request and compel agencies to provide information.[28]

Structure of the bill

1.28The bill consists of one schedule with five parts as follows:

Part 1 contains the main amendments to the Ombudsman Act, including:

enhanced investigatory powers for the Ombudsman;

a new statutory duty on agency heads and their staff to assist the Ombudsman; and

provisions that extend those powers and duties to apply to all statutory offices held by the Ombudsman.[29]

Part 2 would amend the IGT Act to introduce an equivalent statutory duty for agencies to assist the IGTO.

Part 3 consists of technical amendments that would clarify certain provisions of the Ombudsman Act.

Part 4 includes amendments that are contingent on the passage of the Universities Accord (National Student Ombudsman) Bill 2024.[30]

Part 5 would ensure that the bill applies to investigations already on foot at the time of its passage.

1.29As submissions received by the committee related to the provisions contained in parts 1 and 2 of the bill, this report focusses on the:

enhanced investigatory powers for the Ombudsman; and

statutory duty to assist the Ombudsman.

Key issues

1.30Submitters broadly supported the intent of the bill to enhance the investigatory powers of the Ombudsman and introduce a statutory duty for officials to assist with their office’s investigations.

1.31Some submitters argued that the bill would not be a comprehensive response to the shortcomings of the oversight system identified by the Royal Commission.[31]

1.32For example, Civil Liberties Australia (CLA) argued the amendments contained in the bill ‘are piecemeal’ and would not guarantee that complaints about services would be resolved. In its view, ‘[t]hey do nothing to address or solve an individual’s legitimate complaints or possible breaches of human rights. They do not address the fundamental issue of complaints handling by people’.[32]

1.33CLA outlined the power that the Ombudsman has and determined that the bill would not meaningfully empower that office to resolve complaints:

The Ombudsman has no power to conciliate and adjudicate complaints. The Ombudsman is only an effective, final oversight body for complaint resolution if two parameters are met:

The Ombudsman can be relied on to be a tough, external arbiter of truth and honesty: the proposed amendments contain no such guarantee; and

The agency, provider or organisation must be open to re-evaluating, re-‍thinking and changing their stance or decision: the amendments contain no such guarantee.[33]

1.34Professor Matthew Groves disagreed with the CLA’s argument:

When this Bill is viewed as one aspect of the wider official response to the Royal Commission, it is a small and sensible step. The more wide-ranging responses to Robodebt include replacement of the Administrative Appeals Tribunal with the Administrative Review Tribunal and the revival of the Administrative Review Council. While each of those reforms mark an important addition to our framework of governance and oversight, smaller more refined reforms are also required. The Oversight Legislation Amendment Bill is one and when viewed against the wider framework of changes, it is not piecemeal. It is one part of coherent and integrated reforms.[34]

1.35The IGTO strongly supported the provisions of the bill, arguing that the bill responds to the public administration and oversight failures that were revealed by the Royal Commission. In reflecting upon the findings of the Royal Commission, the IGTO stated:

Not only did the administration of the Scheme fail both legally and ethically, the checks and balances in the system to avoid such failures did not identify or stop the maladministration. The powers in this Bill respond to those failures by bolstering the powers and independence of those of us with the responsibility to uphold the integrity of the system(s) and to shine a light on areas that are not operating as intended, without fear or favour.[35]

Enhanced investigatory powers for the Commonwealth Ombudsman

1.36During an investigation, the Ombudsman may authorise an officer to enter premises occupied by a department, agency, or Commonwealth service provider. While physically in those premises, the officer may inspect any documents that are deemed to be relevant to the investigation.[36]

1.37The bill would allow an authorised officer to not only inspect documents, but also other records relevant to the investigation. They would be permitted to ‘inspect, take extracts from, or make copies of, any such documents or other records’.[37]

1.38The officer would also be able to access electronic documents or other records remotely. They would be permitted to ‘inspect, take extracts from, or make copies of, any such documents or other records’.[38]

1.39It would be an offence to fail to provide the officer ‘with reasonable facilities and assistance’ in exercising their investigatory powers.[39]

1.40According to the EM, whether the level of assistance and access to facilities:

…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).[40]

1.41Similarly, an entity under investigation would not be expected to provide remote access to all of its documents and records. According to the EM:

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.[41]

1.42The Ombudsman reminded the committee that the findings of the Robodebt Royal Commission demonstrated that ‘the question of relevance is a matter that must be determined by my Office, not by an agency’. He suggested that if there is uncertainty ‘about the relevance of particular databases, information or data, an agency should openly raise these issues with my Office in the course of our investigation’. He anticipated that the agency and his office would be able to come to an agreement on what is relevant to any investigation.[42]

1.43The Ombudsman suggested that the committee consider amending the EM:

…to remove any doubt that the purpose of the power is to enable my authorised officers to independently search for relevant information. This intention is reflected on the face of the legislation, which provides that only a certificate issued by the Attorney-General under subsection 9(3) of the Ombudsman Act can prevent the disclosure of specific information to the Ombudsman on public interest grounds.[43]

1.44In instances where a risk may be posed to the security of the documents, other records, or the system where they are stored, the Ombudsman may be refused remote access.[44] The EM indicates that in this situation, the Ombudsman would still be able to exercise their powers to view those documents or records in person.[45]

1.45The enhanced investigatory powers would be extended to the:

IGTO;[46]

Defence Force Ombudsman;[47]

Postal Industry Ombudsman;[48]

Overseas Student Ombudsman (OSO);[49]

Private Health Insurance Ombudsman;[50] and

Vocational Education and Training (VET) Student Loans Ombudsman (VSLO).[51]

1.46The bill would also amend the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to clarify that during its preliminary investigations the Inspector-General of Intelligence and Security (IGIS) ‘is entitled to all reasonable facilities and assistance’ that the head of an intelligence agency is capable of providing.[52]

1.47Heads of intelligence agencies have an obligation to provide the IGIS with ‘all reasonable facilities and assistance’ that they are capable of providing when the IGIS is exercising their inspection functions.[53] The Hon Christopher Jessup KC, IGIS, informed the committee that he ‘currently receive[s] a very high level of cooperation from the heads of intelligence agencies with respect to the work of my Office across both my inspection and inquiry functions’. Mr Jessup welcomed the proposed amendment to the IGIS Act as it would extend that obligation to his office’s preliminary inquiry functions and thereby improve the ‘consistency of the obligations on agency heads in relation to my powers and functions under the IGIS Act’.[54]

1.48When he gave evidence to the Royal Commission, Mr Anderson ‘noted that, unlike my Office, the Australian National Audit Office directly accessed the IT systems of agencies’. The Ombudsman:

…suggested that this would be a very useful power for circumstances where we had a concern that an agency was not engaging in good faith and not providing relevant information.[55]

1.49The Ombudsman reported that his office has the power to ‘enter an agency’s premises under section 14 of the Ombudsman Act to inspect any documents relevant to an investigation’. He stated that the bill:

…would put beyond doubt that my authorised officers would be empowered to access, take extracts, copy and inspect any document or other records. This would ensure my Office has full and free access to all records and IT systems, not just hardcopy documents, that we identify as relevant to the investigation.[56]

1.50This new power would also enable officers ‘to independently and directly gather information by remote means’. The Ombudsman expected that it would allow his office ‘to work more efficiently’. He did not anticipate the remote access power would be routinely used and would only be exercised when necessary.[57]

1.51Similarly, the IGTO explained that gaining the legislated right to remotely access documents and other records would assist in its investigations. Currently:

The IGTO has direct access to some of the ATO’s main customer record systems. This access is specified in the IGTO-ATO Protocol and is subject to the ongoing agreement of the ATO. Having full and free access as a right would assist my office to expedite inquiries and strengthen my independence in conducting investigations.[58]

1.52Having a right to physically and remotely access documents and records would expedite certain aspects of the IGTO’s investigations, as the IGTO explained:

At the commencement of an investigation, my office would normally submit a “request for information” to the ATO or TPB for data, documents or records that we believe will inform our analysis and investigations. This is reliant on tax officials searching for and seeking appropriate clearance to provide the requested information. It also relies on clear and unambiguous requests from my agency and on the ATO/TPB understanding the request and responding to the intent of the request. There can be instances where documents exist that the IGTO is not aware of, and thus are not included within the request for information but which are material to our enquiries.[59]

1.53The current model relies upon ‘public servants doing the right thing and providing what is asked for, or offering alternatives if what is asked for is not available, including additional materials for context or background’. The bill would allow IGTO officers to directly access ATO or TPB systems and records to pursue ‘an important line of enquiry’. That power would be exercised transparently with IGTO officers ‘explaining what they are looking for and why’. There would be ‘clear consequences’ for failures to provide access to relevant systems and records which, in the IGTO’s view, ‘brings appropriate “teeth” to the requirement’. The IGTO ‘expects these powers to be used only in exceptional circumstances’.[60]

1.54The Independent Tertiary Education Council Australia (ITECA) raised concerns about extending the remote access power to the OSO and VSLO. It argued that granting remote access powers to those offices could have unintended consequences that prejudice investigations:

ITECA urges caution regarding a proposal to grant both the OSO and the VSLO an additional capability for remote access to potentially confidential business information, student records, and other documents in the absence of any context, purely because they may be potentially relevant to a complaint (which may or may not lead to an investigation). Such records may prejudice an investigation rather than assist it and in cases where students have genuine and well-founded complaints, may be more likely to harm any subsequent investigation than assist it.[61]

1.55The EM explains that the OSO provides ‘assurance to the public that private education providers operate with integrity and accountability in their dealings with overseas students’.[62]

1.56Similarly, the VSLO provides ‘assurance to the public that [vocational education and training (VET)] student loans scheme providers operate with integrity and accountability in their dealings with VET students’.[63]

1.57Extending the remote access powers to the OSO and VSLO would ensure that those offices have ‘access to modern powers necessary to undertake full, independent and transparent investigations’.[64]

1.58The Attorney-General’s Department (AGD) explained that the remote access powers:

…would not expand the scope or type of information that the Ombudsman is able to access under its existing powers but would instead ensure powers can be exercised consistent with contemporary practices and without first having to enter an agency’s premises.[65]

1.59The AGD also assured the committee there would be limitations on the remote access power:

The remote access power would not be unfettered. Access would be required to be undertaken by an authorised officer of the Ombudsman for the purposes of a specific investigation. The Ombudsman would also be required to give notice of the intention for one or more authorised persons to access the documents or records and the period of access.[66]

1.60A failure to provide the Ombudsman with reasonable facilities and assistance to facilitate its remote access power would be an offence. The offence ‘is intended to ensure that agencies cannot frustrate the Ombudsman’s ability to access the information it needs to conduct effective investigations’.[67]

1.61Agencies would be able to mount a defence against this requirement in instances ‘where facilitating access would pose an unacceptable risk to the security of any documents or records or to the system where they are stored’. According to the AGD:

The defence is intended to clarify that it would not be unreasonable for an agency to refuse to provide facilities and assistance to the Ombudsman provided there are legitimate and serious security reasons that mean remote access would not be appropriate.[68]

1.62The AGD stated that the enhancement of the investigatory powers available to the Ombudsman and IGTO would ‘provide greater assurance to the public that agencies are acting with integrity and accountability’.[69]

1.63The enhanced investigatory powers would be applied ‘to all statutory offices held by the Ombudsman under the Ombudsman Act’. The extension of those powers to all of the Ombudsman’s statutory offices:

…would ensure there is clear responsibility on the part of all bodies within jurisdiction to provide assistance to the Ombudsman and would provide the Ombudsman with access to modern powers that support full, independent and transparent investigations regardless of the function it is performing.[70]

1.64The AGD indicated that the amendments would:

…implement recommendation 21.2 of the Royal Commission in full, and are intended to strengthen the Ombudsman’s powers and reinforce the responsibility of agencies to proactively assist the Ombudsman in an investigation.[71]

Statutory duty to assist the Ombudsman

1.65The bill would impose a statutory duty on principal officers of government departments or prescribed authorities to ‘ensure the Department or prescribed authority uses its best endeavours to assist the Ombudsman in the performance of the Ombudsman’s functions’.[72]

1.66That duty would also apply to staff working within those departments or prescribed authorities.[73]

1.67According to the EM:

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.[74]

1.68The EM clarifies that a failure to comply with the statutory duty could constitute a breach of the APS Code of Conduct and may attract sanctions.[75]

1.69The statutory duty would apply to all of the Ombudsman’s statutory offices. According to the EM, this would require ‘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’.[76]

1.70The EM outlines the importance of ensuring that the statutory duty applies to all of the Ombudsman’s functions:

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.[77]

1.71Commonwealth agencies that are involved in the oversight system universally submitted that while the current system works well, the statutory duty that would be introduced by the bill would improve it.[78]

1.72For example, the IGTO stated:

Overall, the current system works well and everyone involved in the system generally acts to do the right thing and to respect the important role of independent oversight authorities. However, the relationship between scrutineer and the subject of scrutiny can give rise to tensions or to create reticence and defensiveness, which can impact the efficiency or effectiveness of investigations.[79]

1.73The Ombudsman and the IGTO indicated that the bill would make it clear that public servants are required to assist in their investigations and that failing to do so may constitute a breach of the Australian Public Service Code of Conduct.[80]

1.74The IGTO viewed the introduction of the statutory duty as ‘an important addition to our checks and balances’. It referred to the lessons of the Robodebt scheme, which demonstrated:

…that investigations should not be solely reliant on the co-operation of those under scrutiny for access to relevant information or documentation. This new measure is unequivocal and timely: all public servants have a legal duty to assist the Ombudsman (and for [Australian Taxation Office (ATO)/Tax Practitioners Board (TPB)] officials to assist the IGTO) without undue delay, distraction or withholding of relevant material.[81]

1.75The IGTO indicated that the statutory duty ‘would act as a prevention and deterrent measure to any tax official considering blocking or delaying the progress of an IGTO investigation’. If an official does not assist with an investigation, the IGTO would be in a position:

…to confidently resolve the issue with the Commissioner so that the investigation could proceed and that light can be shone on any part of the tax system where there is a complaint, cause for concern or opportunity for improvement.[82]

1.76Professor Groves argued that the introduction of the statutory duty could foster a cultural change across the public service that would be of benefit to public oversight:

The duties to assist contained in the Bill have the potential to foster a culture in departments and agencies that they should move beyond the literal words used in an inquiry by an oversight agency to ask “is there anything more we should draw to their attention?”. The potential of the Bill to help this sort of cultural change is commendable.[83]

1.77The AGD stated that the bill would not only implement recommendation 21.1 of the Royal Commission report in full, but extend to all of the functions performed by the Ombudsman:

The inclusion of the statutory duty implements recommendation 21.1 of the Royal Commission in full. While the Royal Commission recommended the statutory duty apply in the context of investigations by the Ombudsman, the Bill would extend the statutory duty to assisting the Ombudsman in the performance of all of their functions. This would include making preliminary inquiries, conducting investigations and following up on implementation of recommendations. This is intended to reflect the full spectrum of the Ombudsman’s functions, which are not limited to investigations, and emphasise the importance of engaging with the Ombudsman in good faith at all times.[84]

Committee view

1.78The Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024 would amend the Ombudsman Act 1976 and the Inspector-General of Taxation Act 2003 to implement recommendations 21.1 and 21.2 of the Report of the Royal Commission into the Robodebt Scheme. The bill would enhance the oversight powers of the Commonwealth Ombudsman and the Inspector-General of Taxation and Taxation Ombudsman. It would also introduce a statutory duty to assist those offices in performing their functions.

1.79The Royal Commission into the Robodebt Scheme found that it cannot be assumed that public servants will participate in good faith with investigations conducted by the Commonwealth Ombudsman. For that reason, it recommended that a statutory duty be imposed on public servants to ensure that they use their best endeavours to assist the Office of the Commonwealth Ombudsman in its investigations.

1.80To further strengthen the investigatory powers available to the Commonwealth Ombudsman, the bill would also require agencies to provide reasonable facilities and assistance during investigations. Allowing the Commonwealth Ombudsman to remotely access documents and information belonging to entities under investigation would modernise the investigatory powers available to it.

1.81The Office of the Commonwealth Ombudsman told the committee that the findings of the Royal Commission into the Robodebt Scheme demonstrated that it must be responsible for determining the relevance of information and not the agency under investigation.

1.82In the Office of the Commonwealth Ombudsman’s view, the Explanatory Memorandum is not clear on this point in relation to the new remote access power. It indicated that an agency under investigation may deliberately or accidentally obfuscate information relevant to an investigation on the grounds that particular databases, information or data are not relevant.

1.83The committee recommends that the government considers amending paragraph 58 of the Explanatory Memorandum to clarify that the purpose of the remote access power is to enable the Office of the Commonwealth Ombudsman to independently search for information relevant to its investigations.

1.84In the committee’s view, the bill strengthens the Commonwealth’s oversight agencies by making it clear that all entities under their jurisdiction have a duty to cooperate in good faith with their investigations. The bill also enhances the powers available to the Commonwealth’s oversight agencies. Those measures would assist in building faith in the Commonwealth’s system of accountability and would help to ensure that the public service operates for the benefit of all Australians.

1.85Subject to the preceding recommendation, the committee recommends that the Senate pass the bill.

Senator Nita Green

Chair

Footnotes

[1]Journals of the Senate, No. 142, 21 November 2024, pp. 4319–4323.

[2]Senate Standing Committee for the Selection of Bills (selection of bills committee), Report No. 13 of2024, 21 November 2024, [p.7].

[3]Selection of bills committee, Report No. 13 of 2024, 21 November 2024, [p. 7].

[4]Royal Commission into the Robodebt Scheme (Royal Commission), About the Royal Commission, www.robodebt.royalcommission.gov.au/about (accessed 9 December 2024).

[5]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 1, 7 July 2023, p. 208.

[6]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 573.

[7]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 1, 7 July 2023, p. 208.

[8]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 1, 7 July 2023, p. 208.

[9]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 10October2024, p. 4.

[10]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 10October2024, p. 4.

[11]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 10October2024, p. 5.

[12]Senator the Hon Katy Gallagher, Minister for the Public Service, the Hon Bill Shorten MP, Minister for the National Disability Insurance Scheme, Minister for Government Services, and the Hon Mark Dreyfus KC MP, Attorney-General, ‘Update on Robodebt royal commission reforms’, Joint media release, 7 November 2024.

[13]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 576.

[14]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 581.

[15]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 576.

[16]Ombudsman Act 1976 (Ombudsman Act), s. 9.

[17]Ombudsman Act, s. 36.

[18]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 576.

[19]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 581.

[20]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 582.

[21]Department of the Prime Minister and Cabinet (PM&C), Government Response: Royal Commission into the Robodebt Scheme, 13 November 2023, p. 33.

[22]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 10October2024, p.4.

[23]Ombudsman Act, ss. 14(1).

[24]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 582. Note: if during an investigation an official authorised by the Auditor-General enters the premises occupied by the Commonwealth, a corporate Commonwealth entity, a Commonwealth company or a Commonwealth partner, the occupier must provide ‘all reasonable facilities’ to allow ‘full and free access at all reasonable times to any documents or other property’. The occupier must also provide ‘all reasonable facilities’ to allow the official to ‘examine, make copies of or take extracts from any document’, see: Auditor-General Act 1997, s. 33.

[25]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 582.

[26]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 582.

[27]Royal Commission, Royal Commission into the Robodebt Scheme: Report Volume 2, 7 July 2023, p. 582.

[28]PM&C, Government Response: Royal Commission into the Robodebt Scheme, 13 November 2023, p. 34.

[29]Note: the Commonwealth Ombudsman performs five other statutory functions. Those functions are: the Defence Force Ombudsman, the Postal Industry Ombudsman (PIO), the Overseas Students Ombudsman (OSO), the Private Health Insurance Ombudsman (PHIO), and the Vocational Education and Training (VET) Student Loans Ombudsman (VSLO).

[30]Note: on 10 December 2024, the Universities Accord (National Student Ombudsman) Act 2024 received Royal assent, see: Attorney-General’s Department (AGD), Submission 4, p. 5.

[31]Civil Liberties Australia (CLA), Submission 2, p. [1]; Fotra Group Consulting, Submission 8, [p. 1].

[32]CLA, Submission 2, [p. 1].

[33]CLA, Submission 2, [p. 2].

[34]Professor Matthew Groves, Submission 6, p. 1.

[35]IGTO, Submission 1, p. 2.

[36]Ombudsman Act, s. 14.

[37]Item 2 in Part 1 of Schedule 1 of the Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024 (the bill); proposed subsection 14(4) of the bill.

[38]Item 4 in Part 1 of Schedule 1 of the bill; proposed subsection 14A(1) of the bill.

[39]Item 3 in Part 1 of Schedule 1 of the bill; proposed subsection 14(5A) of the bill; Item 4 in Part 1 of Schedule 1 of the bill; proposed subsection 14A(5) of the bill.

[40]EM, p. 13.

[41]EM, p. 18.

[42]Office of the Commonwealth Ombudsman, Submission 3, p. 6.

[43]Office of the Commonwealth Ombudsman, Submission 3, p. 6.

[44]Item 4 in Part 1 of Schedule 1 of the bill; proposed subsection 14A(7) of the bill.

[45]EM, pp. 18–19.

[46]Inspector-General of Taxation Act 2003, para. 15(i).

[47]Ombudsman Act, ss. 19F(1).

[48]Item 5 in Part 1 of Schedule 1 of the bill; proposed subparagraph 19R(3)(b)(xii) of the bill. Note: the PIO does not currently have the power to enter premises or access documents and other records remotely. The bill would enable the PIO to enter premises or remotely access documents and other records that belong to Australia Post or a wholly owned subsidiary of Australia Post, see: Ombudsman Act, subpara. 19R(3)(b)(xii) and Item 6 in Part 1 of Schedule 1 of the bill; proposed subsection 19R(4A) of the bill.

[49]Item 7 in Part 1 of Schedule 1 of the bill; proposed paragraph 19ZM(3)(h) of the bill. Note: the OSO currently has the power to enter the premises of private registered education providers, see: Ombudsman Act, para. 19ZM(3)(h). The bill would enable the OSO to access documents and other records remotely.

[50]Item 9 in Part 1 of Schedule 1 of the bill; proposed subsection 20WA(1) of the bill. Note: the PHIO may receive complaints about private health insurers or private health insurance brokers, see: Ombudsman Act, s. 20F. The PHIO may also initiate investigations into the practices or procedures of those entities, see: Ombudsman Act, s. 20T. The bill would enable the PHIO to remotely access electronic documents and other electronic records for the purposes of verifying evidence provided in response to a complaint or while conducting an investigation.

[51]Item 12 in Part 1 of Schedule 1 of the bill; proposed subsection 20ZS(3A) of the bill. Note: the VSLO has the power to enter the premises of the VET loan scheme providers, see: Ombudsman Act, ss. 20ZS(3). The bill would enable the VSLO to remotely access electronic documents and other electronic records for the purposes of conducting investigations into VET loan scheme providers.

[52]Item 15 in Part 2 of Schedule 1 of the bill; proposed subsection 14(4) of the bill.

[53]Inspector-General of Intelligence and Security Act 1986, para. 9A(2)(c).

[54]Office of the Inspector-General of Intelligence and Security, Submission 5, [p. 2].

[55]Office of the Commonwealth Ombudsman, Submission 3, p. 3.

[56]Office of the Commonwealth Ombudsman, Submission 3, p. 5.

[57]Office of the Commonwealth Ombudsman, Submission 3, pp. 5–6.

[58]Inspector-General of Taxation and Taxation Ombudsman (IGTO), Submission 1, p. 4.

[59]IGTO, Submission 1, p. 4.

[60]IGTO, Submission 1, p. 4.

[61]Independent Tertiary Education Council Australia, Submission 7, p. 2.

[62]EM, p. 20.

[63]EM, p. 25.

[64]EM, p. 20; p. 25.

[65]AGD, Submission 4, p. 3.

[66]AGD, Submission 4, p. 4.

[67]AGD, Submission 4, p. 4.

[68]AGD, Submission 4, p. 4.

[69]AGD, Submission 4, p. 1.

[70]AGD, Submission 4, p. 4.

[71]AGD, Submission 4, p. 3.

[72]Item 13 in Part 1 of Schedule 1 of the bill; proposed subsection 32(1) of the bill.

[73]Item 13 in Part 1 of Schedule 1 of the bill; proposed subsection 32(2) of the bill.

[74]EM, p. 26.

[75]EM, p. 26. Note: the sanctions are outlined in section 15 of the Public Service Act 1999.

[76]EM, p. 26.

[77]EM, p. 26.

[78]IGTO, Submission 1, p. 3; Office of the Commonwealth Ombudsman, Submission 3, p. 5; Office of the Inspector-General of Intelligence and Security, Submission 5, [p. 2].

[79]IGTO, Submission 1, p. 3.

[80]IGTO, Submission 1, p. 3; Office of the Commonwealth Ombudsman, Submission 3, p. 5.

[81]IGTO, Submission 1, p. 3.

[82]IGTO, Submission 1, pp. 3–4.

[83]Professor Groves, Submission 6, p. 3.

[84]AGD, Submission 4, p. 3.