Select Committee Upon HomeFund And FANMAC
SELECT COMMITTEE UPON HOMEFUND AND FANMAC
The Hon. J. H. JOBLING: Has the Attorney General and Minister for Industrial Relations received advice from the Crown Solicitor on whether there is any legal impediment to the Ombudsman and the Auditor-General fulfilling the roles envisaged for them in the resolution of the Legislative Assembly establishing the HomeFund select committee?
The Hon. J. P. HANNAFORD: The question of the honourable member is most appropriate. Prior to the Legislative Assembly establishing what might be described as a HomeFund investigation committee, advice about the role and powers of the Ombudsman and the Auditor-General and the way in which they will interface with a committee of the Parliament was conveyed to relevant people in the other place. The Legislative Assembly, on a motion of the honourable member for Bligh, Clover Moore, established a committee the terms of reference of which require certain things to be done by the Ombudsman and the Auditor-General.
When concerns about the legality of the proposed roles of the Ombudsman and the Auditor-General on the Legislative Assembly select committee on HomeFund were apparent I sought advice from the Crown Solicitor. The resolution establishing the select committee appears to envisage that the Ombudsman and the Auditor-General will act officially - that is, under the legislation establishing their offices - to carry out the functions assigned to them by the resolution. In particular, it appears to be envisaged that part of their task will be to carry out separately and together inquiries into matters which might be referred to them by the committee. The Crown Solicitor has advised me:
The Ombudsman and the Auditor-General:
The basic problem is that they -
- have no functions of reporting to or advising a Parliamentary committee such as the select committee.
The matters referred to them might be matters not falling within the scope of their statutory powers and protection.
The Crown Solicitor has further advised me:
The Ombudsman might be able, if he chose, to investigate some matters, and pass on information to the Committee, with the consent of the organisations or persons from whom information was obtained; but that would be at best an incident of an investigation decided on by himself, and the report of which would not be one to be furnished to the Committee.
The Crown Solicitor has further advised me:
The Select Committee's task of inquiring into and reporting on "all matters" concerning HomeFund and FANMAC may well, of course, extend to conduct that is not conduct of a public authority, for example, the conduct of a co-operative society. The Ombudsman's powers of investigation and inquiry extend, no doubt, to the conduct of others, to the extent to which it might have a bearing on the conduct of a public inquiry, but not to their conduct in its own aspects. The possibility therefore arises that the Committee might wish the Ombudsman to investigate conduct that he would have no jurisdiction to investigate under existing legislation.
I quote further from the advice:
It is equally uncertain as to what the Auditor-General might be able to do by way of making inquiries, and it would be no part of his official role to report to the Select Committee.
The Crown Solicitor has also advised that the Auditor-General and the Ombudsman "have no statutory role of acting together to conduct an inquiry or make a report to a select committee". Speaking of the Ombudsman, the Crown Solicitor stated:
The Act does not include provision for him to make reports to or advise a committee of the Parliament, though he has a discretion to make a special report to the Minister for presentation to Parliament on any matter arising in connection with the discharge of his functions.
The advice also stated:
He has no jurisdiction to make an investigation and report jointly or in co-operation with another person, such as the Auditor-General.
These cases are expressly outlined in the legislation. The advice continues:
Section 34 of the Ombudsman Act prohibits the Ombudsman and his officers from disclosing any information obtained by the Ombudsman in the course of his office, except in certain cases.
question, at least unless one of the exceptions available under s.34 applied.
The Crown Solicitor also stated:
Unless these consents were forthcoming, the Ombudsman would be unable to make any disclosure of the information to the Committee . . . A question asked of the Ombudsman, designed to elicit from him information obtained by him in the course of an investigation conducted by him under the Ombudsman Act, would not, in my opinion, be a lawful
This raises a major concern in relation to the select committee's inquiry. I think all members of the House would realise that the Ombudsman and the Auditor-General, because of the structures that we have created in the Parliament with the controls over their appointment and their answerability to the Parliament, have distinct roles. They have been created as individual institutions to operate independently to obtain information and act on it. If we make them the subject of direction, we undermine the integrity of two institutions that provide important checks and balances against the excesses of Executive Government. Basically, the resolution of the Legislative Assembly seeks that those two institutions of the community act outside their statutory charter.
The Hon. M. R. Egan: They are institutions of the Parliament.
The Hon. J. P. HANNAFORD: Yes, and I am making it clear to the Parliament that the institutions that the Parliament has created - the Ombudsman and the Auditor-General - under the statutory charters that they have, act independently and provide independent advice. They are unable to provide the assistance to the select committee which it is clear the resolution of the Legislative Assembly seeks that they provide.
The Hon. M. R. Egan: The resolution in the Assembly seeks assistance from the Government by means of legislation.
The Hon. J. P. HANNAFORD: I make it abundantly clear that I, as the Attorney General, in providing advice to the Government would be loath to recommend to the Government that the independence of those two institutions should be undermined in any way.
The Hon. M. R. Egan: The proposal does not seek to do that.
The Hon. J. P. HANNAFORD: The honourable member for South Coast, Mr Hatton, as the designated chairman of the select committee, and the honourable member for Bligh, as the person who instigated the institution of the committee, must address their minds to determining the powers and role of that particular committee. It is clear that the resolution establishing that committee is fundamentally flawed and that the committee, as it is proposing to act, is unable to pursue the charter that the Assembly gave it in relation to its interrelationship with the Ombudsman and the Auditor-General.
Given the serious flaw in the resolution of the Legislative Assembly in establishing that select committee, I now place the onus back on that committee, through its chairman, and indeed upon the honourable member for Bligh, who moved the motion, for the matter to be reconsidered in detail before spurring on that House to pass a an ill-considered motion. The Parliament through the Public Finance and Audit Act has established a role for the Public Accounts Committee to pursue certain investigations directly in line with what was intended by that particular select committee, as proposed by the Assembly. The Leader of the Opposition should know, because he was one of the leading chairmen of the Public Accounts Committee. In fact, a number of significant reforms in the structure of government were the result of the efforts of the Public Accounts Committee during the chairmanship of the Hon. Michael Egan. The honourable member knows full well that what I am saying is correct.
The Hon. M. R. Egan: It was a distinguished chairmanship.
The Hon. J. P. HANNAFORD: I would not go so far as to say that the Hon. Michael Egan was distinguished - do not put words in my mouth. Clearly a fundamental issue to be addressed by the Labor Party, and also by the Independent members in the lower House, is that the Parliament - that is both Houses of the Parliament - has established a parliamentary procedure to pursue investigations of the type envisaged in the debate in the lower House. A select committee has been established but it is fundamentally flawed. The Labor Party and the Independents in the other Chamber should re-assess their position in relation to the role of that particular committee. After having reconsidered the matter the committee is able to function, or require the Public Accounts Committee, which is in fact the appropriate forum to pursue this particular investigation, to inquire into the matter.
The Hon. M. R. Egan: It is a cover-up.
The Hon. J. P. HANNAFORD: The Leader of the Opposition says it is a cover-up. He is in fact casting a distinct and direct slur on all the members of the Public Accounts Committee. Last week I received nods of approval from all honourable members when I said that no one has ever impugned the integrity or role of the Public Accounts Committee. This former chairman of the Public Accounts Committee is the first person to cast an aspersion on the integrity and independence of that committee. The honourable member will be condemned by his own colleagues for having done so.
Other problems would include the absence of powers to compel witnesses to give evidence in any inquiry conducted by the Ombudsman or the Auditor-General outside his statutory charter, and complications with the protection of those officers and of anyone providing them with information from liability in defamation.