Ombudsman and Other Legislation Amendment Bill 2024

WHAT IS THE BILL?

The object of this Bill is to—

(a) amend the Ombudsman Act 1974 to make minor miscellaneous amendments, and

(b) amend the Community Services (Complaints, Reviews and Monitoring) Act 1993 to make changes consequent on the enactment of the proposed Act and the Disability Inclusion Amendment Act 2022, and

WHAT IS A SHADOW SPI?

The Shadow SPI is a new initiative of the Susan McKinnon Foundation that builds upon the work of the Evidence Based Policy Research Project. It seeks to support parliamentarians in the Legislative Council of NSW during the legislative consideration and voting process, to inform decision making and robust parliamentary debate. It is also intended to improve the quality of tabled SPIs and their usefulness, and to shine a light on the importance of transparency in policy making. Each Shadow SPI is collectively developed by a collaborative team from two ideologically differentiated think tanks (Per Capita and Blueprint Institute) and is intended to be utilised as a companion to the tabled Government Statement of Public Interest in the Legislative Council of NSW. The Shadow SPIs aim to demonstrate a comprehensively answered SPI, within the constraints of time and publicly available information.

SHADOW SPI – OMBUDSMAN AND OTHER LEGISLATION AMENDMENT BILL 2024

This Shadow SPI was developed by Blueprint Institute and reviewed by Per Capita.

Need: Why is the policy needed based on factual evidence and stakeholder input?

The NSW Ombudsman is an independent integrity agency that oversees the NSW public sector and investigates complaints regarding most NSW government agencies, local councils, and community service providers.

Schedule 1 of the Ombudsman and Other Legislation Amendment Bill (Bill) proposes both minor and substantive amendments to the Ombudsman Act 1974. Schedule 2 of the Bill seeks to make minor updates to the Community Services (Complaints, Reviews, and Monitoring) Act 1993 (CSCRM Act) to reflect the changes made in the Disability Inclusion Amendment Act 2022, namely the removal of the deaths of persons with a disability from the scope of deaths reviewable by the Ombudsman. Schedule 3 of the Bill repeals the Ombudsman Regulation 2016, consequent to the inclusion of its contents in the Ombudsman Act via Schedule 1 of the Bill.

The amendments in the Bill were requested by the Ombudsman and prepared in consultation with the Ombudsman’s Office. The Bill affects the Ombudsman’s Office, public authorities (including Aboriginal program providers), and the broader public.

Schedule 1 of the Bill makes several substantive amendments to the Ombudsman Act, such as expanding the Ombudsman’s investigative powers. Sch 1[5] amends s. 20 of the Ombudsman Act to permit the Ombudsman to take copies of any documents found in an inspection of a premises occupied or used by a public authority. In tandem, the Bill creates a statutory duty for public authorities to give reasonable assistance and access to their facilities to the Ombudsman for the purposes of such an inspection.

These amendments align with comparable provisions concerning the Independent Commission Against Corruption and the Law Enforcement Conduct Commission, and will assist the Ombudsman in better identifying, accessing, and retaining relevant information when investigating the premises of a public authority.[i]

Another substantive amendment of the Bill is to amend the definition of Aboriginal program—to which part 3B of the Ombudsman Act applies—as a Government program ‘primarily directed to the health, or cultural, economic, educational, or other wellbeing, of Aboriginal persons or communities’[ii]. The extension of this definition was to address confusion surrounding the Ombudsman’s jurisdiction over Aboriginal programs outside of OCHRE (Opportunity, Choice, Healing, Responsibility, Empowerment), that being the NSW Government’s central framework for engaging with Aboriginal community programs.[iii]

From its establishment in 2014 until recently, OCHRE has operated as the only Aboriginal program to which part 3B of the Ombudsman Act applied—in line with OCHRE’s original vision as the unifying framework for state government involvement in Aboriginal community affairs.[iv] In recent years however, new programs have been initiated under the Government’s Aboriginal affairs portfolio which sit outside OCHRE (such as Kimberwalli, an educational institute in Western Sydney), creating confusion about which organisations part 3B of the Ombudsman’s Act applies to. This amendment will therefore address this confusion and clarify the jurisdiction of the Ombudsman with relation to the government’s Aboriginal Affairs portfolio.

Notably, the Bill proposes to repeal s 31Z of the Ombudsman Act, which prohibits the Ombudsman from disclosing identifying information of protected persons (such as a complainant) except in specified circumstances. This amendment was a direct request from the Ombudsman, who advised that current privacy restrictions concerning complainants are too stringent because they impede communication between parties and efficiency in complaint resolution.[v]

The Bill also implements two new provisions in the Ombudsman Act. The first of these, found in sch 1[15], creates an express statutory duty for public authorities to cooperate with the Ombudsman in the event of an investigation. A similar recommendation was made in the Royal Commission into the Robodebt Scheme, which found that the lack of enforced compliance for public authorities to provide complete and accurate information to the Ombudsman impeded the investigation into the Robodebt scandal.[vi] This new provision will also bolster the statutory duty proposed in sch 1[6] of the Bill for public authorities to give reasonable assistance and access to their facilities to the Ombudsman in the event of an inspection.

The second new provision contained within the bill can be found at sch 1 [16], and would expressly permit the Ombudsman to provide education and training services to public authorities for a reasonable fee. Under this provision, the Ombudsman would be able to provide training on topics related to the Ombudsman’s function, such as how to properly handle complaints, conduct investigations, or avoid misconduct. As explained by the John Graham MLC, ‘education and training activities have long been viewed as essential to the Ombudsman’s role of capacity building, proactively improving complaint handling and promoting good administrative conduct in the public sector’.[vii] The Ombudsman’s Office already provides such education and training services—this provision therefore codifies the Ombudsman’s existing practice.[viii]

COMMENT

The need section for an exemplary SPI should both outline the context of the Bill (including the function of the Bill and the parties affected by it) and the evidential case for the issue the bill is seeking to address. Evidence should be presented to show the existence of the need for the Bill, such as consultations or report recommendations – an exemplary SPI would also indicate how the policies within the Bill address this need.

The need section of this Government SPI primarily focuses on explaining what the Bill does – it only provides limited context for the role of the Ombudsman, and does not clarify or evidence the need for the Bill. It was appropriate for this Government SPI to mention that the policies in the Bill were put forward at the request of, and in consultation with, the Ombudsman’s Office, but the Government SPI would have benefited from a more thorough explanation of why these policies are being put forward to Parliament.

As such, the need for some of the Bill’s provisions is not obvious. For example, sch 1 [16] of the Bill enables the Ombudsman’s Office to provide education and training services for a reasonable fee.

For a miscellaneous bill, it may be appropriate for the need section of the SPI to detail the need for general reform and/or the foundational need for the substantive changes contained within the Bill, depending on the Bill’s contents. As this Bill contains several substantive amendments, it would have been appropriate for the Government SPI to describe why those changes in particular were needed, and indicate proof of those needs.

Objective: What is the policy’s objective couched in terms of the public interest?

The Bill aims to ensure that as an independent integrity agency, the NSW Ombudsman’s Office can operate efficiently and effectively in the performance of the functions, those being to assist public sector organisations in providing quality service delivery and to handle complaints from the public about the administrative processes of public sector institutions. As such, the Ombudsman’s Office acts as an impartial watchdog to protect the public interest, preventing maladministration and systemic unfairness.[i]

The changes proposed in the Bill will ensure that the Ombudsman’s Office remains effective in its function as an independent integrity agency by clarifying the scope of the Ombudsman’s functions and improving the Ombudsman’s power to investigate wrongdoing. As an organisation dedicated to ensuring that ‘everyone receives the right services and fair treatment from those [it] oversight[s]’,[ii] it is in the public interest that the Ombudsman is sufficiently empowered to carry out comprehensive investigations into a defined list of bodies, for the purpose of accountability and upholding standards of transparency, integrity, and equity within the public sector.

For example, the lack of clarity around what constitutes an Aboriginal program under the jurisdiction of the Ombudsman has created an administrative gap, meaning organisations like Kimberwalli (who fall outside the remit of OCHRE) may receive less assistance from the Ombudsman under part 3B of the Ombudsman Act than legislators would have intended. The clarification of Aboriginal programs under the Ombudsman Act patches this regulatory gap, thereby serving the public interest by ensuring that all applicable organisations are subject to the regulations of and are able to access the assistance of the NSW Ombudsman when carrying out their public service functions. Some of the provisions in the Bill have potential negative implications with regard to the public interest, for example the proposed repeal of the information privacy protections in s 31Z of the Ombudsman Act. However, the Bill ensures that any detrimental effects—consequent to the changes necessary to benefit the public interest—are minimised. For instance, although the privacy protections in s 31Z will be repealed, the Ombudsman will still be generally bound to uphold personal information confidentiality as regulated by s 34 of the Ombudsman Act.

COMMENT

Although this Government SPI couched the need for the Bill in terms of the public interest (i.e. that it is in the public interest to ensure the Ombudsman’s Office remains a strong and effective independent integrity agency), it did not clarify how exactly the provisions of the Bill would support this public interest objective. An exemplary SPI would delineate why the objective of the Bill serves the public interest, including specific examples demonstrating how the Bill’s provisions serve the public interest.

Due to the provisions of the Bill proposing a repeal of privacy protections, there was opportunity for the Government SPI to explain how the potential detriment to the public interest of privacy was considered and mitigated in the creation of the Bill. If a detriment to the public interest was not mitigated, the objectives section of the SPI should explain why the Bill’s benefit to the public interest outweighs the consequential detriments the Bill would implement.

Options: What alternative policies and mechanisms were considered in advance of the bill?

As the amendments in the Bill relate to the statutory functions of the Ombudsman’s Office, these changes can only be made through legislation. In addition to legislative amendment, the option of doing nothing (or ‘no change’) was also available to policymakers in addressing the need to mend regulatory issues impeding the function and efficiency of the NSW Ombudsman.

COMMENT

The purpose of this section of the SPI is to outline any non-legislative or non-regulatory policy options and mechanisms that were considered before deciding to bring forward this Bill (including the option of ‘no change’, i.e. maintaining the status quo), as well as any alternative legislation mechanisms. It helps to establish the need for the Bill to address the problem, need, and objective outlined in the previous two questions. This is necessary to demonstrate sound policy-making which is part of the stated purpose of SPIs. If legislation was the only mechanism considered, this section of the SPI provides an opportunity for the Government to explain why that is the case.

Our research, based on publicly available information, does not indicate any alternative policies or mechanisms were considered in lieu of the Bill. This does not necessarily mean that other options could not have been considered in addressing the needs of the Bill, that being to mend the regulatory gaps which impede the Ombudsman’s efficiency and effectiveness in carrying out its duties.

For example, rather than extending the scope of Aboriginal programs to encompass relevant programs outside of OCHRE, the Government could potentially have bought alternate programs like Kimberwalli under the wing of OCHRE. Although this option would have been both administratively difficult and serve as a short-term fix to a systemic flaw, any and all alternative options considered by the Government to resolve need addressed by the Bill should be outlined in the options section of the SPI to indicate that the Bill’s policies are the comparatively best option to resolve the need.

Analysis: What were the pros/cons and benefits/costs of each option considered?

There are two options the government could have taken in the making of this bill: firstly the policy provided by this bill, and secondly taking no action and preserving the status quo (i.e. ‘no change’).

If no change were to be made, the existing structural deficiencies impeding the efficient and effective operation of the Ombudsman would remain. This option has significant costs, both fiscally (e.g. paying for labour and material costs in extended investigations into public authorities) and socially (e.g. the creation of a two-tier system, wherein some Aboriginal programs are able to access the Ombudsman’s assistance where others cannot). The public would also be disadvantaged if no change were to be made, as the Ombudsman would continue to be less effective than it could be in protecting the public interest in the operation of public authorities. There would be little benefit to choosing the ‘no change’ option, as the need for mending the structural deficiencies in how the Ombudsman operates would be left unresolved.

In contrast, the suite of amendments contained within the Bill have few costs, bar the administrative burden of implementing the changes which impact the functioning of NSW public authorities (such as the new statutory duties for compliance in sch 1[6] and [15] of the Bill). The policies in the Bill would ease the administrative burden on the Ombudsman when conducting investigations into public authorities—the saved time and wages from speedier investigations would also translate into a financial benefit for the Ombudsman (and by extension, the Government budget). The public would benefit from the Bill because it encourages better administration of public authorities (through training and education) and amplifies the power of the Ombudsman to support robust and fair public institutions.

COMMENT

The Government SPI for this Bill inferred that as the policies in the Bill had no costs, it was unnecessary to compare the relative merits of alternate options which could address the need in the Bill. This interpretation of the analysis section of the SPI was misguided – a SPI should evaluate both the benefits/pros and the costs/cons of each option to determine which policy will have the greatest benefit for the lowest cost. This section of the SPI is supposed to demonstrate sound policy-making and provide Members with information for them to consider how to proceed with the Bill – the Government SPI fails to do either.

As no alternative options considered in the making of the Bill were provided for the Government SPI or could be uncovered through independent research, this Shadow SPI only explores the pros, cons, benefits, and costs of the two options of ‘no change’ and the policy embedded in the Bill. The no change option is imperative to consider in an SPI as it provides a comparative base to evidence why some action is in the public interest as opposed to no action. In an exemplary SPI, the analysis section will indicate why the policy in the Bill was chosen to address the need for the Bill, with reference to how its benefits/pros and costs/cons compare to alternate options.

Pathway: What are the timetable and steps for the policy’s rollout and who will administer it?

If enacted, the Bill will commence on assent. The Bill does not contain any transitional provisions. As the majority of the amendments in the Bill concern the function of the Ombudsman, the Ombudsman’s Office will be responsible for ensuring knowledge of the changes are circulated and adopted internally.

To ensure that public authorities are aware of their new statutory responsibilities imparted by sch 1[6] and [15], the Ombudsman should conduct post-enactment consultations with all public authorities. The Ombudsman should also consult Aboriginal programs such as Kimberwalli, to affirm the Ombudsman’s relationship and duties to them in light of sch 1[7] of the Bill. There are no specific review or evaluation requirements in place for this bill’s amendments. The Bill’s changes may be reviewed in the Ombudsman’s annual report (as provided by s. 30 of the Ombudsman Act), but this is not a legal requirement.

COMMENT

The Government SPI fails to clarify the implementation pathway of the Bill – providing no details other than ‘if enacted, the Bill will commence upon assent’. Although this Bill will mostly be administered internally within the Ombudsman’s Office, good policy implementation requires consideration to be put towards all parties affected by the Bill. In this case, the Government SPI should have explained how the changed responsibilities of public authorities are to be communicated to them, and should have clarified whether or not the Bill contains a plan for review and evaluation of the amendments.

Consultation: Were the views of affected stakeholders sought and considered in making the policy?

The Bill was prepared in consultation with the Ombudsman’s Office and other NSW government agencies. In particular, Aboriginal Affairs NSW were consulted on the proposed change to the definition of Aboriginal program in s 25K of the Ombudsman Act.[i] No external or public consultation was undertaken, as the Bill relates to the functions of the Ombudsman’s Office.

COMMENT

The Government SPI provides an outline of the types of stakeholders consulted, and justifies why no external or public consultation was undertaken. To improve, the Government SPI would list each of the stakeholders consulted within the broader list of ‘NSW government agencies’, and explain how each of the stakeholders were consulted, and to what effect.

ASSESSMENT

BLUEPRINT INSTITUTE COMMENT:

Although the policies embedded in the Ombudsman and Other Legislation Amendment Bill are appropriate to address the need for the Bill and will serve the public interest, little of the policymaking process behind the Bill was captured in the Government SPI. We highlight the importance of the SPI as a tool to capture the behind-the-scenes policymaking processes which are not immediately apparent, so that Members may better understand the merits of a bill in resolving an identified problem.

The purpose of an SPI is to provide Members with information to make an informed decision on a bill and for the Government to demonstrate sound policy making. Rather than explaining the need for the Bill and why the Bill is the best option to resolve this need, the Government SPI focuses on clarifying the contents of the Bill. The Government SPI should have not only clarified the alternate policy options considered in advance of the Bill, but also the evidence base supporting the Bill’s need and its proposals.

PER CAPITA COMMENT:

Per Capita broadly agrees with Blueprint’s assessment of the Government SPI. The purpose of the SPI is to demonstrate sound policy making and provide Members with information to assist them in dealing with the Bill. This SPI fails to do that. Even where changes are minor or merely codify existing practice, the Government should still use this avenue to provide details on the public interest need for the Bill, explaining why this policy is being put forward and why the Parliament should support it.

The SPI also serves as a transparency measure, informing the Parliament, and the public, as to why the Government is taking a particular action. The Need section of the SPI requires the identification of a need for the policy, not merely what the policy will do. The analysis section is an opportunity to explain the benefits of the policy as well as whether there are any drawbacks. This is crucial for demonstrating sound policy making and further elucidates the need for the Bill.

Assessment of the tabled Statement of Public Interest (SPI)

Exemplary

Good Practice

Adequate

Insufficient

[i] New South Wales, Parliamentary Debates, Legislative Council, 9 May 2024 (Hon. John Graham, Special Minister of State, Minister for Roads, Minister for the Arts, Minister for Music and the Night-time Economy, and Minister for Jobs and Tourism).

[ii] Ombudsman and Other Legislation Amendment Bill 2024 (NSW) sch 1[7].

[iii] Ibid.

[iv] ‘OCHRE Plan – NSW Government Aboriginal Affairs Strategy’, Aboriginal Affairs NSW

[v] Ombudsman, NSW, Annual Report 2022-2023 (Report, October 2023).

[vi] Royal Commission into Robodebt Scheme (Final Report, July 2023) vol 1, 581.

[vii] New South Wales, Parliamentary Debates, Legislative Council, 9 May 2024 (Hon. John Graham, Special Minister of State, Minister for Roads, Minister for the Arts, Minister for Music and the Night-time Economy, and Minister for Jobs and Tourism).

[viii] ‘Training, Workshops and Events’, Ombudsman New South Wales

[i] Ombudsman, NSW, Annual Report 2022-2023 (Report, October 2023).

[ii] ‘Vision, Outcomes and Values’, Ombudsman New South Wales (Web Page)

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