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Legislative Assembly for the ACT: 2005 Week 10 Hansard (25 August) . . Page.. 3283..


MS GALLAGHER (Molonglo-Minister for Education and Training, Minister for Children, Youth and Family Support, Minister for Women and Minister for Industrial Relations) (5.18): The scrutiny of bills committee raised a concern about the restriction of the power of the ombudsman in part 1.2 of the bill, which amends section 5 (2) (n) of the Ombudsman Act 1989. This concern is the one that Mr Stefaniak seeks to address in his amendment.

The short answer to the concerns of the committee is that the ombudsman is only excluded from reviewing the specialist deliberative functions of the Human Rights Commission. These functions include the investigation of complaints by commissioners with specialist expertise, such as the Children and Young People Commissioner. The scrutiny of bills committee did not mention the fact that section 5 (2) (n) enables the ombudsman to investigate the administrative functions of the Human Rights Commission. For example, the ombudsman could investigate the conduct of a commissioner or the time it took for a complaint to be resolved. This is consistent with the ombudsman's oversight of other government agencies.

The amendments to section 5 (2) (n) of the Ombudsman Act 1989 are consequential amendments flowing from the provisions in the Human Rights Commissioner Bill 2005 and mirror amendments to that section in the Human Rights Commission Legislation Amendment Bill 2005 at clause 1.115. Currently, section 5 (2) (n) of the Ombudsman Act 1989 excludes the ombudsman investigating anything that would fall within the jurisdiction of the Community and Health Services Complaints Commissioner. In addition, current provisions in section 5 (2) (i) prevent the ombudsman from investigating any action of any kind by the Community and Health Services Commissioner.

As I have already mentioned, the amendments to section 5 (2) (n) update the provision to exclude investigation by the ombudsman of the Human Rights Commission's deliberative functions, but not its administrative functions. The ombudsman will now have more power than previously, especially in relation to administration of the oversight of health services.

The government's position is that it is not appropriate for the ombudsman to review the specialist deliberative functions of the Human Rights Commission, as this would effectively provide a duplicated oversight process. However, the government does support administrative oversight by the ombudsman because administrative oversight ensures that proper processes are employed. Amendments to the Ombudsman Act to achieve that outcome are included in this bill in schedule 1, part 1.2, and the Human Rights Commission Legislation Amendment Bill 2005.

I can advise the Assembly that the power of the Human Rights Commission to investigate matters is broad. This power derives from the definition of "service", which includes services that are outside the government's purview, for example, in clause 7 of the bill. This broad power ensures that many people in the ACT who receive services for disability or ill-health, children and young people and older people may complain to the Human Right Commission. Because of the breadth of the functions of the commission, including its capacity to consider issues without the need for formal complaint, it is


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