Ombudsman Regulations (Amendment)

EXPLANATORY STATEMENT

STATUTORY RULES 1985 No. 98

(Issued by Authority of the Prime Minister.)

Section 38 of the Ombudsman Act 1976, so far as is relevant, provides that the Governor-General may make regulations not inconsistent with the Act prescribing all matters required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing matters in connection with fees and expenses of witnesses appearing before the Ombudsman.

Section 3 of the Act so far as is relevant provides:

‘3(1) In this Act, unless the contrary intention appears -

‘“prescribed authority” means -

(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment, other than -

  (i) an incorporated company or association;

 (ii) a body that has the power to take evidence on oath or affirmation and is required, or is expressly permitted, by an enactment to be constituted by, or to include among its members, a person who is a Justice or Judge of a court created by the Parliament or a person who has, by virtue of an Act, the same status as a Justice or Judge of such a court;

(iii) a body that, under sub-section (2) or the regulations, is not to be taken to be a prescribed authority for the purposes of this Act;

(iv) the Australian Capital Territory House of Assembly; and

 (v) a Royal Commission;

(b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being -

(i) a body established by the Governor-General or by a Minister; or

(ii) an incorporated company over which the Commonwealth is in a position to exercise control;

(c) the person holding, or performing the duties of, an office established by an enactment, other than such a person who, under sub-section (3) or the regulations, is not to be taken to be a prescribed authority for the purposes of this Act; or

(d) …

‘“principal officer” means -

(a) in relation to a Department of the Australian Public Service - the person holding, or performing the duties of, the office of Permanent Head of the Department; and

(c) in relation to a prescribed authority -

  (i) if the regulations declare an office to be the principal office in respect of the authority - the person holding, or performing the duties of, that office; or

 (ii) in any other case - the person who constitutes, or is acting as the person who constitutes, that authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he is present;’

Sub-section 24(2) of the Act provides:

‘(2) An Ombudsman shall be paid such allowances as are prescribed.’

The proposed regulations amend the Ombudsman Regulations to implement changes to the jurisdiction of the Ombudsman recommended in a report by the Administrative Review Council. The report recommended, in particular, that incorporated companies over which the Commonwealth is in a position to exercise control and Commonwealth trading and commercial authorities be brought within the jurisdiction of the Ombudsman. These recommendations were accepted except for cases where the bodies concerned were in direct and substantial competition with the private sector and where the market place sufficiently regulated their administration.

In addition, following amendments to the Public Service Act 1922 which came into operation in 1984 it was necessary to re-designate for the purposes of sub-section 24(2) of the Act the level of allowances payable to both the Ombudsman and a Deputy Ombudsman.

Details of the regulations are as follows.

Regulation 1 provides for the ‘Principal Regulations’ to be the Ombudsman Regulations.

Regulation 2 amends existing regulation 7 to omit paragraphs (a) and (b) which make references to officers of the First Division and Second Division of the Australian Public Service and substitutes new paragraphs (a) and (b) which provide for allowances to be paid:

(a) in relation to the Ombudsman - at the rate payable to a Secretary of a Department; and

(b) in relation to a Deputy Ombudsman - at the rate payable to a Senior Executive Service officer.

Regulation 3 amends existing Schedule 1 which specifies for the purposes of sub-paragraph (a)(iii) of the definition of ‘prescribed authority’ in sub-section 3(1) of the Act, bodies which are not to be taken as prescribed authorities and are therefore excluded from the Ombudsman’s jurisdiction. The following amendments are made.

The Anglo-Australian Telescope Board and the Christmas Island Phosphate Commission, by their removal from the Schedule, are both brought within the jurisdiction of the Ombudsman. The Advisory Council for Inter-government Relations, the Commonwealth Grants Commission and the National Debt Commission are included on the Schedule, and thus removed from the jurisdiction of the Ombudsman, because their functions are internal to governments. The Defence Force Remuneration Tribunal, the Industrial Appeals Tribunal of Christmas Island and the Pharmaceutical Benefits Review Tribunal are included on the Schedule, and thus removed from the jurisdiction of the Ombudsman, as they have conciliation and arbitration functions. The Cocos (Keeling) Islands Council is included on the Schedule because it is a body having legislative functions and such bodies are excluded from the jurisdiction of the Ombudsman. The Security Appeals Tribunal is included on the Schedule as all security bodies are outside the Ombudsman’s jurisdiction.

Regulation 4 repeals existing Schedule 2 which lists prescribed authorities for the purposes of sub-paragraph (b)(ii) of the definition of ‘prescribed authority’ in sub-section 3(1) of the Act and replaces it with a new Schedule 2. The new Schedule 2 brings within the jurisdiction of the Ombudsman several incorporated companies over which the Commonwealth is in a position to exercise control. The companies are:

Aboriginal Hostels Limited

Anutech Pty Limited

Australian Bicentennial Authority

Australian Institute of Sport

Barker House Pty Limited

Coal Mines Insurance Pty Limited

Commonwealth Accommodation and Catering Services Limited

Croydon Investments Pty Limited

East Australian Pipeline Corporation Limited

Edwards River Crocodile Farm Pty Limited

Fawns and McAllan Pty Limited

Fawns and McAllan Pty Limited

Law Courts Limited

New Guinea Resources Prospecting Company Limited

Phosphate Mining Company of Christmas Island

Rotary Tableting Corporation Pty Limited

Regulation 5 amends existing Schedule 3 which specifies persons who are not to be taken to be prescribed authorities for the purposes of the Act and are therefore outside the jurisdiction of the Ombudsman pursuant to paragraph (c) of the definition of ‘prescribed authority’ in sub-section 3(1) of the Act. The Schedule is amended by adding the offices of Christmas Island Arbitrator and President of the Security Appeals Tribunal. These amendments are consequential to the amendments made by Regulation 3.

Regulation 6 amends existing Schedule 4 which lists principal offices, the occupants of which are each to be taken to be a principal officer in respect of a specified prescribed authority for the purposes of sub-paragraph (c)(i) of the definition of ‘principal officer’ in sub-section 3(1) of the Act. The Executive Officer of the Commonwealth Scientific and Industrial Research Organization is omitted because the position does not exist. Several principal offices are added to Schedule 4, those offices having been unintentionally omitted when the regulations were first made or having come into existence since then. The offices are: