Ombudsman Amendment (Prescribed Authorities) Regulations 2024 - New and Ongoing Matters [2025] AUPJCHR 18 (3 March 2025)

• Ombudsman Amendment (Prescribed Authorities) Regulations 2024140
• Exclusion of the NACC Inspector from Commonwealth Ombudsman’s jurisdiction
• International human rights legal advice
• Right to effective remedy
• Committee view

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Ombudsman Amendment (Prescribed Authorities) Regulations 2024^[140]

FRL No.	F2024L01668
Purpose	This legislative instrument provides that the Commonwealth Ombudsman may not investigate action taken by the Inspector of the National Anti-Corruption Commission.
Portfolio	Attorney-General’s Department
Authorising legislation	Ombudsman Act 1976
Disallowance	15 sitting days after tabling (tabled in the House of Representatives on 4 February 2025 and in the Senate on 4 February 2025). Notice of motion to disallow must be given by 15 April 2025 in the House and by 14 May 2025 in the Senate.[141]
Right	Effective remedy

Exclusion of the NACC Inspector from Commonwealth Ombudsman’s jurisdiction

1.105 This legislative instrument provides that the National Anti-Corruption Commission (NACC) Inspector is not to be taken to be a prescribed authority for the purposes of the Ombudsman Act 1976.^[142] This means that the Ombudsman’s functions under the Act will not include investigating action taken by the NACC Inspector.

1.106 The regulation also removes reference to the Australian Security Intelligence Organisation and the Director-General of Security, who, as intelligence services, are already excluded from the Commonwealth Ombudsman’s jurisdiction.^[143]

1.107 The explanatory statement states that the exclusion of the NACC Inspector from the Ombudsman’s oversight is consistent with the treatment of the Auditor-General, who, like the NACC Inspector, is an independent officer of the Parliament and already exempt from the Ombudsman’s oversight.^[144]

International human rights legal advice

Right to effective remedy

1.108 In the event that a person’s human rights were limited by the actions of the NACC Inspector (for example, interference with a person’s right to privacy and reputation), excluding the Commonwealth Ombudsman from investigating actions taken by the Inspector may engage the right to an effective remedy.

1.109 The right to an effective remedy requires the availability of a remedy which is effective with respect to any violation of rights and freedoms recognised by the International Covenant on Civil and Political Rights.^[145] It includes the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the state.

1.110 While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), States parties must comply with the fundamental obligation to provide a remedy that is effective.^[146]

1.111 The statement of compatibility states that ‘substantive avenues’ remain for a person to seek an effective remedy where their rights are affected by actions of the NACC Inspector. It states that decisions by the NACC Inspector, including findings or recommendations, remain reviewable under the Administrative Decisions (Judicial Review) Act 1977, and are subject to judicial review under the Judiciary Act 1903 or in the High Court’s original jurisdiction.^[147]

1.112 The availability of judicial review may provide access to a remedy in respect of a breach of human rights. However, judicial review in Australia represents a limited form of review. It allows a court to consider only whether the decision was lawful (that is, within the power of the relevant decision maker). The court cannot undertake a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision. The committee has therefore previously concluded that judicial review in the Australian context is not likely to be sufficient to fulfil the international standard required of 'effective review' because it is only available on a number of restricted grounds of review.^[148]

1.113 Further, the NACC legislative framework provides for immunity from civil liability for acts done by staff members of the NACC (including the Commissioner)^[149] and the NACC Inspector, or a person assisting them, in the performance of their functions or duties.^[150] When these civil immunity provisions were made in 2022, the committee considered that they did not appear to preclude a civil suit against the Commonwealth itself, meaning it would appear that an effective remedy may be available for a violation of a person's rights and freedoms.^[151]

1.114 However, domestic jurisprudence suggests that it is unlikely that the Commonwealth would be found liable for actions taken by its officers or public officials where that individual is provided with immunity from liability, unless the relevant statute specifies that the immunity does not extend to the Commonwealth as a whole. This is a result of the case law which generally supports the proposition that if a public employee is immune, then the Commonwealth or Crown employer is also immune.^[152] In light of the case law, it appears that where an officer has been given a statutory immunity, the Commonwealth will also not be liable unless it can be demonstrated that a lack of good faith is shown, meaning no legal remedies for any tortious conduct, or breach of contract, would be available.

1.115 As the legislation granting immunity to staff members of the NACC and the NACC Inspector does not specify that immunity would not extend to the Commonwealth, it appears that an individual may also be precluded from bringing a civil suit against the Commonwealth itself, meaning an effective remedy may not be available for a violation of a person’s rights and freedoms by the NACC Inspector. As such, it is not clear that a person affected by an action of the NACC Inspector would have access to sufficient remedies for a breach of their human rights to amount to an effective remedy for the purposes of international human rights law.

Committee view

1.116 The committee notes that this legislative instrument provides that the Commonwealth Ombudsman cannot investigate actions taken by the Inspector of the National Anti-Corruption Commission.

1.117 The committee considers that this engages the right to an effective remedy. The committee considers that, in view of the NACC Inspector’s immunity from civil liability and the potential extension of this immunity to the Commonwealth, it remains unclear whether a person affected by an action of the NACC Inspector would have access to sufficient remedies for a breach of their human rights to amount to an effective remedy for the purposes of international human rights law.

Suggested action 1.118 The committee recommends that the statement of compatibility be updated to: (a) identify that the NACC Inspector has immunity from civil liability, and explain whether the immunity would also apply to the Commonwealth as a matter of law; and (b) detail what other remedies may be available to individuals where actions of the NACC Inspector resulted in an impermissible limit on human rights, and whether and how those remedies would be sufficient to amount to the availability of an effective remedy under international human rights law.

1.119 The committee draws its human rights concerns to the attention of the Attorney-General and the Parliament.

Mr Josh Burns MP

Chair

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^[140] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Ombudsman Amendment (Prescribed Authorities) Regulations 2024, Report 2 of 2025; [2025] AUPJCHR 18.

^[141] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[142] Ombudsman Regulations 2017, paragraph 7(b)(v).

^[143] The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Act 2023 amended the Commonwealth Ombudsman’s functions under the Ombudsman Act 1976 to provide that the Ombudsman is not authorised to investigate intelligence agencies by inserting paragraph 5(2)(e) into the Act. This includes ASIO and the Director-General of Security, see Ombudsman Act 1976, subparagraph 5(2)(e)(i).

^[144] Ombudsman Regulations 2017, paragraph 7(b)(i).

^[145] International Covenant on Civil and Political Rights, article 2(3). See, Kazantzis v Cyprus, UN Human Rights Committee Communication No. 972/01 (2003) and Faure v Australia, UN Human Rights Committee Communication No. 1036/01 (2005): states parties must not only provide remedies for violations of the ICCPR, but must also provide forums in which a person can pursue arguable if unsuccessful claims of violations of the ICCPR. Per C v Australia, UN Human Rights Committee Communication No. 900/99 (2002), remedies sufficient for the purposes of article 5(2)(b) of the ICCPR must have a binding obligatory effect.

^[146] See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

^[147] Statement of compatibility, p. 3.

^[148] See Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp.14–17; Report 12 of 2018 (27 November 2018) pp. 2–22; Report 11 of 2018 (16 October 2018) pp. 84–90; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 196–202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25–28. See also Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]–[8.9].

^[149] National Anti-Corruption Commission Act 2022, s 269.

^[150] National Anti-Corruption Commission Act 2022, s 196.

^[151] Parliamentary Joint Committee on Human Rights, National Anti-Corruption Commission Bill 2022 and National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, Report 5 of 2022 (20 October 2022) p. 14.

^[152] See, for example, Darling Island Stevedoring and Lighterage Company Limited v Long [1957] HCA 26; (1957) 97 CLR 36 (Fullagar J); Parker v The Commonwealth of Australia [1965] HCA 12; (1965) 112 CLR 295 (300–301) (Windeyer J); Dunstan v Orr (No. 2) [2023] FCA 1536 at [113]; Kable v State of New South Wales [2012] NSWCA 243 [54]; Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 at [115]; The Finance Brokers Supervisory Board v Van Stokkum [2006] WASCA 97 [18–21] (McClure JA); Bell v State of WA [ 2004] WASCA 205 [34]; De Bruyn v South Australia (1990) 54 SASR 231 [235] (King CJ); Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at [731–733] (Clark JA); Parker v The Commonwealth of Australia [1965] HCA 12; (1965) 112 CLR 295 (300-301) (Windeyer J).