Mr DAVID SHOEBRIDGE [11.54 a.m.], by leave: I move The Greens amendments Nos 1 and 2 on sheet C2012-164A in globo: The purpose of these amendments is to insert a new section 19D. The new section provides that the provisions of new sections 19A to 19C apply only in relation to publications or disclosures in connection with an inquiry held by the Ombudsman concerned a matter referred to the Ombudsman by the Inspector of the New South Wales Crime Commission or the Inspector of the Police Integrity Commission. Proposed new sections 19A, 19B and 19C all put in place effectively new gag provisions for the Ombudsman. New section 19A as proposed by the bill allows the Ombudsman to direct that any evidence given before any inquiry held by the Ombudsman, the contents of any document or any information that might enable a person to find out about the evidence that was put before the inquiry, or even the fact that someone had appeared before an Ombudsman inquiry, must not be published except in such manner and to such persons as the Ombudsman specifies if the Ombudsman so directs.
The Ombudsman is not to give that direction unless satisfied that the direction is necessary or desirable in the public interest. So it effectively allows the Ombudsman to put a gag order on any inquiry—not just an inquiry that has been forwarded to the Ombudsman through the Inspector of the Police Integrity Commission or the Inspector of the Crime Commission but any inquiry. That would allow the Ombudsman to have the same secretive hearings that we have had in the Crime Commission and the Police Integrity Commission. I could understand why there might be a necessity to have the ability to put those kinds of restraining orders, or gags, in place where the inquiry results from a matter that has been referred from the Police Integrity Commission or the Crime Commission, because those two bodies quite often hear very sensitive policing information and, in the absence of a power to put some kind of secrecy around the evidence that comes out when there has been a referral from one of those bodies, secret policing, police intelligence and criminal intelligence might get out.
But why on earth have this gag provision in relation to the balance of the Ombudsman’s work, in relation to the bread and butter work that the Ombudsman is meant to do across all government agencies—in relation to the Department of Community Services, Housing, Treasury and Finance? What is the necessity for this general gag provision? No argument has been raised as to why the Ombudsman needs these kinds of secrecy provisions. Not once in a single report from the Ombudsman over more than a decade has the Ombudsman indicated that the Ombudsman needs secrecy provisions—not once. It has never been publicly discussed at any point. The Law Reform Commission has not looked into this. There has been no report from the Ombudsman looking into this matter. But all of a sudden the Government moves to give the Ombudsman this broad gagging power.
The Greens amendment would limit this gagging power to circumstances where the inquiry in question results from a referral from the Crime Commission or the Police Integrity Commission. We understand there may be a need in those circumstances. But there is no argument at all to broadly change the Ombudsman’s practice in response to this narrow issue being addressed by this bill, which is to allow the Ombudsman to investigate Taskforce Emblems.
The same point is made in relation to proposed section 19B, which provides that a person who is present at an inquiry must not publish, or permit to be published, any evidence given before the inquiry or any of the contents of a document produced at the inquiry, except to the Ombudsman, an officer of the Ombudsman or an Australian legal practitioner appointed under section 19 (4) or as permitted by the Ombudsman or the regulations. That is an absolute prohibition: It is not subject to direction from the Ombudsman when the Ombudsman might think it is in the public interest; it is not subject to any kind of limitation. So anyone who is present at an inquiry cannot publish or permit to be published any evidence given before the inquiry or any of the contents of the document produced at the inquiry. Let us imagine a high-profile whistleblower has been out in the media, has made a series of detailed allegations and has been talking to the community about potentially large-scale corruption. Let us take a fanciful example such as a whistleblower in a government department who finds out that a Government Minister is rorting the State for mining licences worth hundreds of millions of dollars. Let us imagine something extraordinarily implausible like that might be occurring.
Mr DAVID SHOEBRIDGE: I hear the Government say, “That could never happen”, but I think it might. There is a potential for that kind of thing to happen. That whistleblower may well refer that matter to the Ombudsman and one would hope that the Ombudsman would take on board the inquiry and would commence an investigation. The Ombudsman would then hold a hearing and the whistleblower would, hopefully, be called to give evidence at the hearing and produce a whole lot of documents to the Ombudsman. Why should those documents then have a cloak of secrecy over them and why should the evidence that the person gives to the Ombudsman have a cloak of secrecy over it? What if the Ombudsman’s inquiry is taking months and months to complete but there is a State election or some other issue relating to mining licences and the whistleblower does not want to wait for the finalisation of the Ombudsman’s report but wants to get the documents out into the public domain and wants to get the evidence on the public record? This proposed gag provision would prevent the whistleblower from doing that because once the whistleblower has given the documents and the evidence to the Ombudsman it is a criminal offence for the whistleblower to then go out and provide the documents and the evidence to the community at large. There is no reason at all to put in place this gag provision. The Ombudsman needs to have the ability to hold fearless and independent investigations, but the Ombudsman is not the only place the Government should be held to account; it is not the only place for scrutiny. There is a very valid place for scrutiny in the broader public discussion, for scrutiny in the media, for scrutiny in community organisations and for scrutiny in this Parliament. This gag provision effectively means that once someone gets a matter off to the Ombudsman everybody has to remain shtum while, potentially, the Government has the benefit of a secrecy cloak placed over it by the fact that the Ombudsman is having an inquiry. It is a major backward step for public accountability and scrutiny in New South Wales. As I said before, there may be an argument to limit the gag to when there is a referral from the Inspector of the Crime Commission or the Inspector of the Police Integrity Commission, but a general gag should not be applied to the Ombudsman. The same points can be made in relation to section 19C. There is a narrow argument to apply that kind of provision when inquiries result from referrals from the Inspector of the Crime Commission or the Inspector of the Police Integrity Commission, but there is no call at all for a broad criminalising of people who may, for their own decent and fair reasons, want to go out and talk about an investigation that the Ombudsman has been undertaking. The Ombudsman may not want the investigation talked about, he may want to be the only person inquiring about a matter, but there is no argument at all why the Ombudsman, in most cases, should be the only person talking about it. There is a very valid place for the broader public to talk about these matters without the threat of criminal penalties simply because the Ombudsman is conducting an investigation. I commend the amendments to the Committee.
Mr David Shoebridge: How will you know there is a gag order?
Mr DAVID SHOEBRIDGE [12.06 p.m.]: I find it remarkable that the Ombudsman has apparently been in negotiations with the Government about having these additional gag powers without disclosing to the broader community, without putting a report forward, without doing the kind of usual open consultation that the Ombudsman normally requires government agencies to do before they take major steps. The Ombudsman is meant to be there as the public guardian of openness and accountability and scrutiny.
Mr DAVID SHOEBRIDGE: It is deeply troubling that the Ombudsman, who is meant to have that role, appears to have had private negotiations with the Government—no public reporting, no public discussions, no report being put forward to this Parliament or to the broader community, but has had offline discussions with the Government about getting new gag powers. That is an appalling process for the Ombudsman to be engaged in and I find it quite remarkable that such a fundamental change to the practices of the Ombudsman is proposed, including section 19B, which operates as a matter of law and is not subject to direction of the Ombudsman. Section 19B just provides that anyone who has been present at an inquiry cannot publish or permit to be published any evidence or any document produced at the inquiry. It is just a general gag provision. It does not require a direction or any public interest test by the Ombudsman at all. Before we make those kinds of legal changes and apply a general gag for what has occurred at the office of the Ombudsman surely, in accordance with what the Ombudsman repeatedly says is good practice for every other government agency it looks at, there would be a report or some kind of public discussion, some kind of engagement before we rush through this legislation that was tabled in the other place only yesterday afternoon. Instead, there has been an off-the-record conversation between the Ombudsman and the Government. It seems to me that much of it was considering the narrow referral powers from the Inspector of the Crime Commission and the Inspector of the Police Integrity Commission, but this bill is not limited to that; this bill covers all the operations of the Ombudsman, all the inquiries held by the Ombudsman.
It is poor practice to rush this kind of legislation through on less than 24 hours notice on the second last day of Parliament for the year without any consultation with the broader legal community, whistleblower groups or other public interest advocacy groups. We are rushing this legislation through and putting this gag on everything the Ombudsman does without any consultation. It is poor practice from the Government and, I must say, from the Ombudsman.
Mr DAVID SHOEBRIDGE [12.11 p.m.]: The Greens amendments would not prevent this bill from going through and they are not intended to do that. The Greens amendments would simply limit to the matter of urgency these new gag powers that no-one has seen before and about which there has been no public consultation or engagement with interested parties such as the legal profession or other public interest advocacy groups. I do not care whether it comes to my office; it is the public that should be consulted before this happens. Let us limit these gag powers to the actual matter of urgency.
This is urgent because it is hoped that there will be a referral from the inspectors of the Police Integrity Commission and the Crime Commission. I understand it is urgent and that there might be a need for secrecy provisions for those inquiries. The Greens amendment would allow the necessary secrecy provisions to be put in place for those urgent matters. The Minister is either deliberately misunderstanding and mischaracterising the amendments or engaging in the shameful behaviour of political grandstanding. The amendments would allow the urgent inquiries to be undertaken and also allow the Ombudsman to have those powers in relation to referrals from the Crime Commission or the Police Integrity Commission. The amendments would not implement the wholesale change that the Government has snuck in under the radar without any consultation. I commend the amendments to the Committee.