Legislative Assembly for the ACT: 2010 Week 08 Hansard (Tuesday, 17 August 2010) . . Page.. 3441 ..
proposed by Mrs Dunne, but I would like to outline a number of our observations about it.
The provision which the opposition seeks to remove provides that the commissioner has the discretion to not refer a complaint to the relevant complaints entity if the complaint is frivolous, vexatious or minor in nature, or if the complainant does not have sufficient interest in the subject matter, or if the complainant has not attempted to resolve the complaint with the appropriate agency, something which the commissioner would assist the complainant with.
I understand that the motivation for moving this provision is a concern about possible conflict of interest for the commissioner. It is something that I have been deeply conscious of. Of course, we should guard against the potential for conflict of interest in the same way as we should guard against possible errors of judgement and acknowledge professional variations of opinion.
At the other end of the spectrum of arguments for and against removal, however, is the danger that removing this provision will essentially render the commissioner as merely a post-box. There is no doubting that victims of crime can be vulnerable members of our community, and the commissioner’s core functions relate to supporting and advocating for them.
The commissioner has to be of the opinion that it is appropriate to exercise his or her discretion, because a complaint falls into the categories outlined above, on the basis of informed and extensive experience in the area and the area of public administration generally. The Assembly should be confident that it would only be for good reason made on an objective assessment of all the facts in that particular situation, and mindful of what can be achieved for the victim, that the commissioner might not refer a matter. It would not be a subjective or a competitive assessment.
Public officials, by virtue of their experience in the field, come to recognise over time which matters are significant, which are trivial, which deserve formal investigation, which speak of a breakdown in communication that can best be handled locally and which, of course, should be escalated. For these reasons, the government does have the concern that this proposed amendment simply creates a situation where the properly appointed advocate for victims’ interests becomes no more than a post-box for their complaints.
Of course, the risk will be that they may end up being in a situation where they will well know that the forwarding of a complaint without substance, or on which the complainant has insufficient interest or connection, will likely come to a dead end immediately after referral.
Nevertheless, the government acknowledges that if the commission forms this view in relation to a concern or complaint brought to them, then the commissioner will still be able to advise the complainant accordingly. In that way, the complainant will still be able to draw on the benefit of the commissioner’s experience, even if the complainant then still maintains a desire for the complaint to be put to those other agencies.