Assemblée législative de l'Ontario

VISIT BY NEW SOUTH WALES PARLIAMENTARY DELEGATION

CONTENTS

Wednesday 16 October 1996

Visit by New South Wales parliamentary delegation

Committee on the Office of the Ombudsman, Legislative Assembly of New South Wales

Mr Andrew Fraser

Mr Bryce Gaudry

Ms Helen Minnican

STANDING COMMITTEE ON THE OMBUDSMAN

Chair / Président: Mr John L. Parker (York East / -Est PC)

Vice-Chair / Vice-Président: Mr Tom Froese (St Catharines-Brock PC)

Mrs ElinorCaplan (Oriole L)

*Mr CarlDeFaria (Mississauga East / -Est PC)

*Mrs BarbaraFisher (Bruce PC)

*Mr TomFroese (St Catharines-Brock PC)

*Mr DougGalt (Northumberland PC)

*Mr PatHoy (Essex-Kent L)

*Mr LeoJordan (Lanark-Renfrew PC)

*Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)

*Mr RosarioMarchese (Fort York ND)

*Mrs MargaretMarland (Mississauga South / -Sud PC)

*Mr John L. Parker (York East / -Est PC)

Ms LillianRoss (Hamilton West / - Ouest PC)

*Mr R. GaryStewart (Peterborough PC)

Mr LenWood (Cochrane North / -Nord ND)

*In attendance /présents

Also taking part /Autres participants et participantes:

Mr GillesMorin (Carleton East / -Est L)

Clerk / Greffier: Mr Todd Decker

Staff / Personnel: Mr Philip Kaye, research officer, Legislative Research Service

The committee met at 1016 in room 151.

VISIT BY NEW SOUTH WALES PARLIAMENTARY DELEGATION

The Chair (Mr John Parker): We're very pleased this morning to introduce two guests from New South Wales. I suppose three guests; I should include the project officer as one of our guests. We are being visited this morning by Mr Andrew Fraser and Mr Bryce Gaudry, who are members of the Legislative Assembly of New South Wales. They are also members of the Ombudsman committee of that assembly. They are joined by Helen Minnican, who is the project officer associated with that committee.

Mrs Margaret Marland (Mississauga South): Mr Chair, I hosted a parliamentary delegation from New South Wales in August. You had about five committee members travelling from your Parliament. The Clerk's department organized their visit to the assembly, and we spent the whole day together. It was most interesting.

Mr Bryce Gaudry: We had the pleasure earlier this week to visit your national Parliament. We've come here from the UK, where we also visited the Parliament there, and of course the traditions both in a parliamentary sense and in a social sense between our countries make our visit very pleasurable and very interesting as well.

The Chair: Of course, it's just getting better with each step. That's good to hear.

The subcommittee met to discuss this morning's visit and we thought that what we would do is keep it informal but invite our guests to perhaps share a few comments or remarks with us to lead off. Then, to give them some perspective on how things are done around here, we'll invite Philip Kaye to give some comments reflecting our experience with the Ombudsman and the whole Ombudsman regime here in Ontario and then open it up for a general discussion. Bryce or Andrew, I'm happy to turn it over to you now.

Mr Gaudry: Really, I suppose in an opening way, the Office of the Ombudsman in New South Wales sits in a context of a whole range of public authorities dedicated to lessening corrupt behaviour and maladministration, and I imagine that the same would apply in Canada. There's an increasing emphasis in government towards good government in the public sector. We have both the Ombudsman oversighting maladministration and the ICAC, as we call it, the Independent Commission Against Corruption, which has a role of investigating and rooting out corruption in the public sector and also putting in place systemic change across the public sector. We also have the Auditor General, whose role of course is to audit the accounts of government and investigate obviously serious and substantial waste of public moneys in public authorities.

Our committee has been given a new brief. You may be aware that in New South Wales at the moment we are having a royal commission into our police service and into corruption in particular within the police service. That royal commission will wind up its powers in January and its role in investigation and in cultural change within the police service will be overtaken by the Police Integrity Commission, which was put in place by an act of Parliament this year. This committee then will have the oversight role both of the Ombudsman and the Police Integrity Commission.

In the context of the work done by the Ombudsman in New South Wales, about 70% of the Ombudsman's work actually is dedicated towards complaints against the police, and I'll be interested to hear the role your committee plays.

We have a role of oversighting the work of the Ombudsman, monitoring and reviewing the exercise by the Ombudsman of the Ombudsman's functions. We can then draw matters relating to that to the attention of the Parliament. We can report on any changes that we consider necessary to the function, structure or procedures of the Office of the Ombudsman. We can also inquire into any question referred to us by both houses of Parliament.

In relation to that, our committee has just concluded a report to the Parliament on the operations of the Protected Disclosures Act. That's a further act in New South Wales to aid public officials in eliminating corruption. It's more commonly referred to as the whistleblowers' act, and you might have an act similar to that within your jurisdiction. It is an act that is put there to give public officials protection when they blow the whistle on corruption, maladministration or serious waste of public moneys they have noted within their department.

The act had a proviso in it that it would be reviewed, and the Parliament tasked our committee to undertake that review. The Ombudsman plays an important role in being an investigative authority under that act, as do the ICAC and the Auditor General. We've just completed that review and have made recommendations to the Parliament as to how the act may be improved. It has only been in effect for one year, but we noted that the act, while it was in principle working, did not seem to be providing adequate protection to those people who did blow the whistle. Many of them have complained that they have been subject to serious reprisals.

That's just one of the roles the committee undertakes. Ms Minnican has provided you with a brief on our role. You'll notice that there has been a series of inquiries undertaken by the committee. It's interesting to note that the Ombudsman Act was passed in 1974, but the actual committee structure was not set up until 1990. Since that time there has been a series of inquiries undertaken by the committee into the role of the Ombudsman and the functions undertaken, and the adequacy of either those functions or the funding of the Ombudsman's office.

Very briefly, you'll see that in 1992 the role of the Ombudsman in investigating complaints against police was undertaken. That led, in its recommendations, to some very substantial changes to the Police Act and a new Police Services Act being brought in, which has led to many more complaints in the police service being conciliated and more serious cases being oversighted much more closely by the Ombudsman. There was also an inquiry into funds and resources of the Ombudsman and the adequacy of those funds and resources to the office carrying out its function.

I was not on the committee at the time. I think Mr Fraser was chairing that committee. It may be more pertinent for him to make some comments on that, but probably in terms of a general worldwide trend to small government, it didn't lead to increased funds going to the Ombudsman. It led more to changes perhaps within the management systems within the Ombudsman's office.

There's also access and awareness, and I can recall reading in your recommendations that you have also been quite concerned about issues of access to the Ombudsman and awareness of the role and function of the Ombudsman in the community. The committee made quite a number of recommendations there, and they have led to some recent improvement in funding to the Ombudsman and the tasking of specific offices, particularly towards access to members of the aboriginal community in New South Wales.

We also have a six-monthly general meeting with the Ombudsman. The committee will also extend that in its relationships with the new Police Integrity Commissioner, who is a different person. That gives an opportunity for us to place before the Ombudsman a series of prepared questions which the Ombudsman replies to in a formal sense and then speaks to at the committee hearing. That is obviously followed by the same thing I'm sure occurs here, a series of questions without notice from the committee which may plumb both those issues and a whole range of other issues. Sitting at this end of the table, I feel the same sense of insecurity that I'm sure any public official does appearing before a committee.

I might just leave my introductory statements there. Mr Fraser may have a different focus or view.

Mr Andrew Fraser: Not really a different focus or view. I was a prior chairman of the committee. One of my major interests in the role of the Ombudsman is access and awareness. Canada being somewhat similar to Australia, vast differences and outlying areas are of great concern to me.

We are intending on November 8, when we get back, to actually take our committee to the country, to my electorate -- the best part of New South Wales, but I'm somewhat parochial. We're going to ask her to come up there. We're going to have a general meeting with her and try and focus the role of the Ombudsman back into the country New South Wales, the original New South Wales.

I believe one of the major problems in New South Wales is that the Office of the Ombudsman is in Sydney and a lot of country people tend not to realize the role and the accessibility of the Ombudsman. It is a pity and it's something that I personally would like to see expanded. We had our access and awareness program. It always comes back to one thing, I suppose, which is money. I believe all governments find it very hard to adequately resource all areas of government, and a lot of the time it's a matter of making funds available in order to get those services out to the community.

It is very hard for the Ombudsman to set up offices in regional areas, so it's a matter of the local member of Parliament and local government departments advising the people they're dealing with of their rights with regard to the Ombudsman.

The other thing, just briefly, that Bryce didn't touch on is that our committee also has the power of veto on the appointment of both the Police Integrity Commissioner and the Ombudsman. That power is such that when the government makes an appointment we have the opportunity to veto that appointment, but I suppose it's much the same as what we have here today. The government normally has the numbers on the committee and while it's not necessarily a rubber stamp, it is normally the way the government goes.

It is an important power I believe the committee should have because oftentimes committee can come up with information the government may or may not have, and it's an opportunity for the committee itself, in camera, to probably get to know the future Ombudsman or future Police Integrity Commissioner and ensure that you've got a working relationship going on.

The committee itself is an oversight committee. A lot of time the recommendations that are put forward, especially with regard to funding, are not taken up by the government, but it does have an important function in recommending changes to the act, changes to the way the Ombudsman operates and an opportunity to discuss fairly openly with the Ombudsman at our regular meetings where we believe as a committee the emphasis of the Ombudsman's activities should be placed.

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Mr Gaudry: Just in terms of the committee structure itself, the committee is bipartisan. There are six members of the government party and five are non-government. Those five non-government are two independents, a Liberal Party member, a National Party member -- yes, there are 11. You'll notice that it's Legislative Assembly and Legislative Council, the Legislative Assembly being the lower House and the council the upper House in New South Wales. So both Houses are represented, but of course the Legislative Assembly has the actual balance in terms of the numbers.

The method of appointment: In terms of the government members, they are nominated from within the caucus and the other parties obviously ensure who will be representing them within their internal structure and then that comes before the House and the appointment is then made formally within the Legislative Assembly itself.

We work in principle in a totally bipartisan fashion and, as Andrew said, perhaps in the veto situation it would be most unusual for a veto to be put into effect. In fact, I don't think in any of the jurisdictions where that applies it has been put into effect, but it's certainly an important function to have. It also gives an opportunity with the new appointees when they first appear before the committee for them to realize that we do have oversight powers and that they do have a responsibility to the committee and through the committee to the Parliament, rather than having any direct responsibility to executive government. I'll just leave my comments there.

Mr Fraser: One other thing: I don't know whether it was made clear that the committee itself has the power to instigate inquiries into areas of operation that it sees fit, such as access and awareness. It doesn't necessarily have to be a direction of the Parliament for the committee to undertake an inquiry into the operation of any area of the Ombudsman or the Police Integrity Commissioner. So the committee can, normally at the discretion of the chairman in discussion with the committee, instigate investigations into certain areas and come up with a report that recommends changes or other -- it could be legislative or operational changes within the role of the Ombudsman and it's up to them and possibly up to the Parliament, more probably up to the Ombudsman, how they alter or change their mode of operation. The committee in that sense does have wide-ranging powers to look at any area of operation with regard to the Ombudsman.

The Chair: Thank you very much. Helen, did they get it just about right?

Ms Helen Minnican: Just about, yes.

Mr Gaudry: She will burnish the edges somewhat.

The Chair: We have invited Philip Kaye to share a few remarks with you as to our structure and our experience in this province with the institution of the Ombudsman and this committee.

Mr Philip Kaye: As the Chair has said, I've been asked to give some brief comments on the structure of the Ombudsman Act of Ontario and the role of this committee.

An Office of the Ombudsman was established in this province in 1975 with the passage of the Ombudsman Act. The appointment of an Ombudsman had been promised in the speech from the throne in 1975 "as a safeguard against a growing complexity of government and its relationship with the individual citizen." It was further stated in the speech from the throne that such an office would "ensure the protection of our citizens against arbitrary judgement or practices."

The Ombudsman's independence from government is reflected in his or her appointment under the Ombudsman Act as an officer of the Legislature. The appointment is made by the Lieutenant Governor in Council on the address of the assembly for a term of 10 years. Further terms are possible, although in general the Ombudsman must retire upon reaching the age of 65. There is also a provision whereby the Ombudsman is removable at any time for cause.

With respect to the office itself, it must be audited annually by the Provincial Auditor and must submit annual reports to the assembly.

The general mandate of the Ombudsman is defined in the Ombudsman Act as follows: "to investigate any decision or recommendation made or any act done or omitted in the course of the administration of a governmental organization and affecting any person or body of persons in his, her or its personal capacity."

Complaints then must concern a governmental organization defined as a "ministry, commission, board or other administrative unit of the government of Ontario, and includes any agency thereof." This definition means that the Ombudsman does not have jurisdiction over federal, municipal or private bodies. In addition, such bodies as children's aid societies, public hospitals and school boards are not seen as being subject to a sufficient degree of governmental control to be considered governmental organizations.

Another limitation holds that the Ombudsman may not investigate a complaint where there exists some further avenue of appeal or right to apply for a hearing on the merits of the case. This limitation is reflected in the Ombudsman statement that the Ombudsman is a place of last resort after all other avenues of appeal have been exhausted.

Other limitations prohibit the Ombudsman from investigating complaints respecting the courts and the proceedings of cabinet.

The Ombudsman's powers, however, may be exercised despite any provision in any act that the decision, recommendation, act or omission in question is final or cannot be appealed.

The Ombudsman may investigate complaints launched in one of three ways: First of all, by the person affected; secondly, by any member of the assembly to whom a complaint is made by the person affected; and thirdly, on the Ombudsman's own motion. Systemic problems have been examined by ombudsmen either in the context of a particular complaint or on the Ombudsman's own motion.

The Ombudsman may decide not to investigate a complaint or to discontinue an investigation under a range of circumstances. Where an investigation is conducted and it appears that the Ombudsman may make a report -- which in practice is known as a tentative report -- that "may adversely affect any governmental organization," the Ombudsman must give the organization an opportunity to make representations respecting that report.

After completing an investigation, the Ombudsman must decide whether the conduct in question falls in one of the following categories, and the categories are very similar to the categories in New South Wales's Ombudsman Act. They are:

"(a) appears to have been contrary to law;

"(b) was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a rule of law or a provision...or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory;

"(c) was based wholly or partly on a mistake of law or fact; or

"(d) was wrong."

The Ombudsman must also decide whether "a discretionary power has been exercised for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations." Furthermore, the Ombudsman must decide whether reasons should have been given for a decision made in the exercise of a discretionary power.

Where any of these circumstances exist, the Ombudsman must report his or her opinion, with any recommendations, to the governmental organization concerned. If the Ombudsman feels that the governmental organization has not responded adequately and appropriately to the report within a reasonable time, the Ombudsman may provide reports on the matter to the Premier and subsequently to the assembly. These cases brought to the assembly's attention are known as recommendation-denied cases. It seems that a similar process is followed by the Ombudsman of New South Wales who, if not satisfied that sufficient steps have been taken in due time in consequence of a report, may report to Parliament on the matter. The New South Wales legislation, however, continues that within the next 12 sitting days, the responsible minister must make a statement to Parliament in response to the report.

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The Ombudsman Act does not give the Ombudsman the power to enforce his or her recommendations. In this regard, the current Ombudsman, Roberta Jamieson, has said that the Ombudsman relies upon respect for her office to obtain the implementation of her recommendations by governmental organizations. Political pressure is also generated by reporting these recommendation-denied cases to the Premier and to the assembly.

Investigations by the Ombudsman must be conducted in private. In addition, the Ombudsman's oath of office and secrecy prohibits the disclosure of any information received as Ombudsman except as is necessary to establish grounds for his or her recommendations in a report.

With respect to a legislative Ombudsman committee, in Ontario the first legislative committee dealing with the Ombudsman was established in 1975, the year the Ombudsman's office was established, as a select committee on guidelines for the Ombudsman. Ombudsman committees quickly became a permanent part of the Ombudsman process, and 10 years later, in 1985, the select committee approach was changed to that of a standing committee.

Unlike the Ombudsman committee of New South Wales, Ontario's standing committee on the Ombudsman is not created by statute. There is no reference at all to the committee in the Ombudsman Act. Instead, the committee is established by the standing orders of the Legislative Assembly.

The committee's terms of reference under the standing orders can be broken down into three areas: Firstly, reviewing and reporting on the Ombudsman's annual reports; secondly, reviewing and reporting on reports by the Ombudsman of recommendation-denied cases.

Since the creation of the Ombudsman's office, the Ombudsman has referred 134 recommendation-denied cases to the committee. In 54 of the cases, the Ombudsman's recommendations were accepted prior to a review of the committee. The committee has consequently reviewed 80 cases. The committee has fully or partially supported the Ombudsman in approximately 72% or 73% of these 80 cases. Looking at the cases where there was some committee support, in 85% of them the government's subsequent response was, in the committee's view, satisfactory.

The number of recommendation-denied cases has declined substantially in recent years. Since the 1990-91 fiscal year, there have only been five such cases, all in 1993.

A third aspect of the committee's mandate involves the formulation of rules for the guidance of the Ombudsman. The Ombudsman Act empowers the assembly to make general rules for the guidance of the Ombudsman in the exercise of his or her functions. In the standing orders, the assembly has delegated to this committee the responsibility for formulating these rules. Rules proposed by the committee are presented to the assembly for adoption. General rules were adopted by the assembly in November 1979. Since that date, no further rules have been made.

Among other matters, the rules set a time frame for the tabling of the Ombudsman's annual report, explain the term "adverse report" and clarify the procedure for the reporting of recommendation-denied cases by the Ombudsman to the Legislature.

There are two functions which the committee has performed but no longer does which I'd like to outline briefly. The first one involves the review of estimates. Between 1983 and 1989 the Ombudsman's estimates were reviewed by the Ombudsman committee as well as by the Legislature's Board of Internal Economy.

In 1989 the estimates role of the Ombudsman committee was eliminated when the standing orders were changed to state that the estimates of all ministries and offices were deemed to be referred to a new standing committee on estimates. The estimates committee, however, is not authorized to examine all the estimates referred to it. It must consider at least six but not more than 12 ministries and offices. The estimates not selected are deemed to be passed by the committee. The Ombudsman's estimates have never been selected for review by the estimates committee. Accordingly, since 1989 the Ombudsman's estimates have been reviewed by the Board of Internal Economy only.

Another function previously performed by the committee involved the handling of complaints received from members of the public with respect to the service provided and procedures followed by the Ombudsman's office. These complaints were reviewed by the committee's subcommittee on communications from the public. In the cases it reviewed, the committee refused to act as a court of appeal from Ombudsman decisions. Accordingly it would not review complaints about the correctness or reasonableness of the Ombudsman's decisions. Instead, the focus was on the procedural fairness of the Ombudsman's investigation. For instance, was there excessive delay in processing a complaint?

The committee assumed a role regarding these complaints for two reasons: First it would be of assistance in identifying the need to make new rules, and second, it was considered important that individuals have some means of voicing their concerns about the fairness of the Ombudsman's own investigation.

The current Ombudsman takes a different position from those of previous ombudsmen who would participate in these reviews. It is her understanding that her oath of secrecy under the Ombudsman Act prohibits her from discussing the handling of particular complaints with the committee.

Recognizing the importance of a cooperative approach with the Ombudsman's office in addressing these complaints, the Ombudsman committee in 1993 formally recommended that the committee no longer review complaints from the public with a view to making recommendations with respect to the Ombudsman's handling of a particular case.

From my reading of the New South Wales legislation, it seems to me that recommendation-denied cases are one area where your Ombudsman committee differs from ours and that those cases do not go to your committee, also that your committee has never had any responsibility when it comes to reviewing complaints from the public regarding the service provided by the Ombudsman's office.

Mr Gaudry: Just commenting on that, that's correct. We do look at process, though. If there is delay, if we consider that there's a long period of perhaps procedural problems associated with a complaint we may take that up with the Ombudsman but not the individual complaint itself.

Mr Fraser: That's done on more of a general meeting basis rather than on an individual case. To me, from what you're saying, you are almost the Ombudsman's Ombudsman, this committee, where we don't have that role. We get a lot of complaints to the committee where the Ombudsman has denied a case or they don't like the decision the Ombudsman has made, but we just refuse to handle those because it really --

Mr Gaudry: It's outside the brief.

Mr Fraser: It is outside our brief, but to me it would be very time-consuming. Just on that, do you actually take evidence on those cases, when you review them, on the recommendation denied or do you just review the case as the Ombudsman presents it to you? How does the committee review that?

Mr Kaye: As I mentioned, no recommendation-denied cases have come to the committee in the past few years, so I don't have any personal experience in terms of the procedure followed by the committee. Witnesses are heard. But I don't believe that the person who has made the complaint to the Ombudsman appears before the committee; it's simply hearing from the governmental organization concerned and from the Ombudsman's office.

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Mr Fraser: Are those cases held in camera or are they public hearings?

Mr Kaye: The name of the person who has complained is kept confidential, but I believe the meetings are conducted in public.

Mr Gaudry: Just returning to the issue of a complaint coming in about the handling of a matter by the Ombudsman, not the matter itself but the process: How is that addressed by the committee, the timeliness of response, the mechanism by which an Ombudsman's office had dealt with a member of the public, whether or not there are proper procedures within the Office of the Ombudsman to do certain functions, which are issues that we might take up?

Mr Kaye: That was a function the committee hasn't performed in recent years, so again I cannot speak from personal experience, but I believe, as with the recommendation-denied cases, that there would be witnesses from the Ombudsman's office who would appear before the subcommittee. Those meetings would be in private.

The Chair: I'm just wondering if you can take a minute and wrap up your comments. There are just a few more comments here, then we'll open it up to general discussion.

Mr Kaye: The last thing I wanted to mention about the mandate of the committee was that in 1992-93 the committee conducted a comprehensive review of the Office of the Ombudsman. The review focused on the relationship between the Ombudsman and the Legislature which included, among other things, the committee's role regarding the management of the Ombudsman's office, the making of rules for the guidance of the Ombudsman, the examination of recommendation-denied cases and the handling of complaints from the public concerning investigations by the Ombudsman.

Some of the recommendations in the committee's report would have expanded the committee's mandate. For instance, they would have restored the review of estimates by the committee, given the committee a role in the appointment of the Ombudsman and authorized the committee to monitor and review the Ombudsman's exercise of his or her functions, a function explicitly within the terms of reference of the Ombudsman committee of New South Wales. In December last year the House referred this report from 1993 to the current committee for review.

The Chair: Philip, thank you very much. The challenge that falls on me as Chairman now is to encourage a two-way dialogue, which I think we would all like, but that's not the tradition of the process here, you appreciate. We'll do our best with that. I'll try to stick generally to the typical rotation but I don't intend to be bound by that. Let me just see if there are any questions or comments from the government side.

Mr Tom Froese (St Catharines-Brock): Thanks for coming all this way. I was just talking to my colleague Gary Stewart to find out if you guys were coming off your winter or going into your spring.

Mr Gaudry: It's spring. In my home town it's 33 degrees today.

Mr Froese: From the coldness in the room here you appreciate that we're going into our winter. We must have the air-conditioning still working or something.

With respect to the brochure we got, the blue form here, and primarily the roles and functions, the first statement says that the Ombudsman Act of 1974 was amended in 1990. Was that to provide for the establishment of the joint committee or did the role and functions of the Ombudsman that you state here, to review and monitor the Ombudsman's office and so on and so forth, change? Was there a minor change, or what actually happened in 1990?

Mr Gaudry: The committee was created in 1990. Prior to 1990 there was not an oversight committee, so the joint committee was created at that stage.

Ms Minnican: It's a particular part of the Ombudsman Act now, and there were a couple of other minor amendments that came through at the same time but nothing that substantially affected the Ombudsman's jurisdiction.

Mr Froese: So there was really no committee in government or anything to do anything like that. You might have touched on it in your comments before, but why was there a need, what was the reason, other than complaints about the police, for establishing -- from what you've stated and what we've got here, you really have a lot of power and control of the Ombudsman. You can virtually do and recommend anything you want, as I understand it. My view is that we don't have that here with our committee with respect to the Ombudsman. For what reason was the committee established?

Mr Fraser: I think the main reason was to ensure that the Ombudsman was doing the job that was intended in the first place, that the committee could oversight the act itself and make recommendations. There are often recommendations put forward that the Parliament or the government at the time won't accept. A lot of those, as I said before, had to do with money. For more access and more awareness in the region of New South Wales you need money, and quite often premiers and treasurers, especially treasury, are not very receptive to the idea of spending more money.

The whole idea of the committee itself, as far as I was concerned, was that it was created just to oversight the role of the Ombudsman, to oversight the legislation and to make sure the legislation stayed up to date with the needs of the community with regard to the role of the Ombudsman. So it was just an oversight area and it also gives, I believe, that special link between the Ombudsman, the community and the Parliament so that the Parliament is not too distant and the Parliament is not just acting on recommendations by the Ombudsman to the ministry, because you could have a lopsided recommendation. In this way it's a filtering process, I suppose.

Mr Gaudry: Ms Minnican has some historic comments.

Ms Minnican: One of the major catalysts for the amendments was a report by the then Ombudsman Mr Landa, in which he advocated the establishment of the committee. The model he used was largely the New Zealand officers of Parliament committee, and certain of his recommendations weren't picked up by Parliament in the bill. He specifically wanted us to look at his estimates and to recommend funding and also to recommend the appointment of the Ombudsman. Those are the two major functions that weren't adopted by Parliament. Everything else was fairly much implemented.

Mr Gaudry: There always appears to me to be somewhat of a dilemma in being a committee oversighting the Ombudsman in that the Ombudsman often appears to the committee seeking a friend, I would think, whereas the committee has the oversight role, so there's somewhat of a collision between those two areas of interest. Once again it's that link between Parliament and the Ombudsman which is important, rather than the Ombudsman having just executive government having a view of what the Ombudsman ought to be doing.

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Mr Gilles E. Morin (Carleton East): I have a series of questions. I think perhaps it will stir more discussion. You meet every six months with the Ombudsman?

Mr Gaudry: Yes. There's nothing in the act or in any standing orders that determines that meeting. It's a meeting that the committee has generated and it's an accepted meeting, both in terms of the ICAC and the Ombudsman's committee, as a mechanism for fleshing out concerns the committee has and obviously giving the Ombudsman the opportunity also to put on record concerns that the Ombudsman has.

Mr Morin: Does the Ombudsman make any effort to meet each member of Parliament on a personal basis; for instance, to explain the role and function of the Ombudsman? When you have a new Parliament elected, does the Ombudsman make any effort to more or less explain what is the role and function of the Ombudsman, or how does the MPP or the member of Parliament obtain the information about what is the role and function of the Ombudsman?

Mr Fraser: I think it's a duty of the MP to know what the Ombudsman does. The system in Britain, we noticed, was one whereby referrals to the Ombudsman can only be made through an MP. In Australia, I believe as an MP, we are like Ombudsmen. You get to a stage with a lot of cases where you can't resolve it successfully as an MP. You may consider there is some maladministration or something that needs to be referred and adjudicated. Quite often I'll recommend one of my constituents to take a particular issue to the Ombudsman. So it's a matter of knowing as part of your duty as an MP what the functions are.

We get on very well with our Ombudsman. Bryce, I'm not sure, were you on the committee when we appointed this current Ombudsman?

Mr Gaudry: No.

Mr Fraser: She is very accessible. There are no problems. I think any committee member who phoned her wouldn't have a problem with actually just ringing her up and saying: "I want to come down and have a look. I want to talk to you about certain matters." The committee itself, when we have our general meetings, gives her questions on notice.

Bryce and I, during this trip, have been sitting down and making notes for questions we would like a response to. When we have that general meeting she then responds to the questions we've given on notice and that then creates discussion. There may be something out of an answer she has given that may lead to more questioning in that particular area, and at the end of it she may come up with a recommendation, or we may, for a change, either in her operation or it's a discussion -- it's fairly open -- or it's a legislative change.

Mr Gaudry: Just picking up on that, talking about the Ombudsman in Great Britain, Sir William Reid appeared from discussions that we had with his officers to be very much in constant contact with the MPs, visiting the Parliament House on a weekly basis and obviously much more in personal contact. That isn't the case. There are information packages on the operation of the office. All members in their electorate offices would have information to assist the public in linking to the Ombudsman, and as Andrew has said certainly committee members and, I'm sure, any member of Parliament who wishes to have direct access to speak to the Ombudsman would have no difficulties at all, but it isn't that more proactive model that obviously the British Ombudsman follows.

Mr Morin: What is interesting in England of course with the parliamentary commissioner system is that the member of Parliament is more directly involved, and when the case becomes too complicated or he doesn't have the resource it takes to pursue the case, then it passes on to the parliamentary commissioner. I found that with that system it cuts the bureaucracy.

One of the problems we have here in Ontario, like many other offices across the world, I think, is that once the bureaucracy gets involved, it takes an eternity to solve a problem, to solve a case. How many members are there in the office in Australia, in New South Wales, how many members in the Ombudsman's office?

Mr Gaudry: There are 72 members. I've got some statistics here which may be useful to the committee. Since 1974, the Ombudsman's office has dealt with 95,000 formal complaints and about 100,000 informal. In 1994-95, which is the last report, the Ombudsman dealt with 7,636 formal written complaints, and as I said before, 5,000 of those were complaints relating to the police and 2,580 in other areas of jurisdiction. There's been an annual increase in complaints of 7% to 10%. Those complaints obviously are written complaints that can be assisted in being provided as written complaints, of course, but they're not necessarily complaints that come via a member of Parliament. In fact, as Andrew said, the member of Parliament often would find that they become the complainant by that process and it can lead to a very complicated system rather than a direct complaint.

Mr Fraser: One of the things in that regard, as far as I'm concerned, is that under our system, if someone came to my electorate and said they had a problem with a government department and I then referred it on their behalf to the Ombudsman, I become the complainant. I like the British system from what I've seen of it, but I don't like the idea in Australia where you are assisting a constituent and you actually own the complaint. I would like to be able to refer cases on some people's behalf. Sometimes I do, but it creates an extra workload for myself. The cases I refer are normally in a situation whereby the person complaining has very poor literacy skills or may be absolutely frightened of any area of bureaucracy, so you tender it on their behalf. But it does create a problem. It means the member -- I personally, I know, avoid that as much as I can purely because of the fact you then own the complaint.

If we had a system whereby you could automatically refer it, and we noticed in Britain in our discussions there that while the MP puts the complaint in, the Ombudsman or the parliamentary commissioner is now communicating directly with the complainant and copying it back to the member of Parliament, so the workload is eased a little bit from the member. That appears to me to be quite good. That way you're informed of the complaint, you're kept informed of how it's progressing as to whether there is a positive or negative result out of it, and on that basis you can then probably take action via the ministerial offices as a member to ensure, or try to, that whatever the complaint is, it doesn't happen again.

Mr Morin: In Ontario we have offices of ombudsmen in other locations across the province. You're dealing with an area of 412,000 square miles. It's big, huge. Do you have the same system in Australia where you have offices in different parts of --

Mr Fraser: No. What we do have, which is interesting -- in my electorate we're 600 or 700 kilometres from Sydney, where the Ombudsman's located, but we have a lot of neighbourhood centres which are run in conjunction with local government, but they also tend to provide information to people who may have problems accessing that information.

You would find in just about every one of those neighbourhood centres that there are brochures from the Ombudsman. All government departments really are required to provide that information and MPs' offices do provide that information. The information is very easily accessible. They also have a toll-free telephone number back to the Ombudsman in Sydney. If someone wishes to make a complaint or wishes to know how to go about making a complaint outside the local member of Parliament, they can do it.

As part of our access and awareness report, previously with the Ombudsman we suggested that verbal complaints should be handled. Especially in Sydney the awareness and access is one of multiculturalism where people don't understand. They are not fully conversant in the English language and we're looking at ways the Ombudsman will accept those complaints by way of telephone and then send an officer out to enable them to formalize their complaint. The access is there and it is getting better, but as I said, it's one of my interests, being a non-metropolitan member, to ensure that access is improved the whole time.

Mr Gaudry: Just in terms of the access issue as well, the Ombudsman was making more visits to regional New South Wales, but once again in terms of funds and resources there's been a constriction of those visits. In fact, as Andrew said, we're generating one to Coffs Harbour both as a mechanism of increasing the community's awareness of our role, as well as giving the Ombudsman a further opportunity to have contact with people in that regional centre.

Just in terms of resources, and I don't know how it equates with the resources here, the budget for the Ombudsman in 1994-95 was $4.4 million and that's to cover the staff of 72 and the total operation of the office, so it's obviously a big task with a limited budget.

Mr Morin: We started the budget in 1975 with $1.5 million; it's now $7.5 million. So you have hearings occasionally across the nation to listen to complaints or grievances from citizens, or you don't do that?

Mr Gaudry: We don't. This visit to Coffs Harbour is an opportunity for us to give the public a better understanding of our role, but one of the things we don't wish to do, I would think, as a committee is to become an appeal body in the mind of the public and we'd have to be careful that did not occur.

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Mr Fraser: We're going to have to be careful when we have this meeting that we emphasize that we are there on the basis of a legislative committee rather than the Ombudsman. The Ombudsman does get into regional New South Wales. I recently had the Ombudsman up into my electorate, within the last six months. We have deputy ombudsmen with specialized interests. Oftentimes they will go into a particular area because of the type of complaint. We have a deputy Ombudsman, a local government one, a deputy Ombudsman, police. What else do we have?

Ms Minnican: There's a deputy Ombudsman and then two assistant ombudsmen. The office is split up into two areas, the police area, and then the general area which covers corrective services, prisons, local government and other departments. So you've got an assistant for each of those areas.

Mr Morin: I'm sorry to take so much time. I'm keenly interested. I notice that you have 99 members of the assembly and the idea when we first created the Ombudsman was to have the same number of employees as we had members of Parliament. At that time we had 125 members of Parliament, so therefore we had 125 staff. That was criticized of course because of the cost. I don't know how many members there are today, how many staff there are. Maybe it's 130. That was the idea Mr Maloney had at that time, "Let's have the same amount." One of the main criticisms was the question of budget. I don't know if it's the same with you, but I'd like to hear your comments on that.

Mr Gaudry: As was said earlier, the funds and resources inquiry that the parliamentary committee undertook was to look at that issue. We're in a situation in Australia, in New South Wales, and probably at every local government level of doing more with less and the same applies to any government department or authority.

I'm sure that right from the inception it wasn't set up with the idea of giving one staff member for every member of Parliament; rather to tie it to the level of activity the Ombudsman's office undertakes and to look at perhaps better use of technology in terms of the operations of the office. I certainly know that since that funds and resources inquiry the management systems within the office were restructured and there's also more use of electronic recordkeeping and transfer of information. It really is more looking at those aspects in terms of resourcing.

Mr Rosario Marchese (Fort York): I was interested in the figure of 70% of all cases dealing with complaints against the police and wondered about the evolution of that. Why is it focused almost entirely on that? Secondly, why aren't you getting an excessive number of complaints coming forth from the various ministries to which the government is attached?

Mr Fraser: The ministers would have you believe that their departments are that good no one would need to complain. There's been somewhat of a revolution in New South Wales and Australia the last number of years, starting with the Fitzgerald inquiry into police in Queensland, where people are more aware of their rights and the actions of police, and then the royal commission in New South Wales. Prior to the royal commission, as part of the awareness that was going on, there were a lot of complaints generated by people back to the Ombudsman with regard to the police, be they corrupt behaviour or just the way people perceived the services they were receiving from the police in certain areas.

I think what will happen now, because of the Police Integrity Commissioner which has come out of the royal commission into police corruption, is that those numbers will reduce because a lot of the areas of corrupt conduct will be handled by the Police Integrity Commission. That imbalance will disappear, but my attitude is that the large number of police complaints came out of the fact that there was an awareness within the media, and therefore the public, that there were corrupt or unlawful practices or just incorrect practices by police.

Mr Gaudry: Just on that as well, we have several bodies operating in terms of oversight: the ICAC, which is looking specifically at corruption. So issues of corruption within all of the public authorities go to that area, the maladministration to the Ombudsman, and of course the serious and substantial waste, those aspects would go to the Auditor General.

There's also the issue under the new Police Integrity Commission that there will be a range of corruption and serious issues dealt with apart from the Ombudsman's office, but they will still cover the ordinary bread-and-butter, if I can put it that way, complaints against police, and there are a substantial number of those. In fact, if you break that 70% up into class and kind, a lot of the complaints are about the day-to-day contact between the public and the police service.

But in terms of why the Ombudsman is concentrating so much on the police, just looking at our history, in 1978 the Police Regulation (Allegations of Misconduct) Act gave the Ombudsman a very limited role regarding internal investigations of complaints. Then in 1984 the Ombudsman was given power to reinvestigate complaints against police -- that broadened -- and in 1993 a further broadening of the power of the Ombudsman. So it's gradually developed more and more into a police complaints handling body.

I think as Andrew said and perhaps as I said at the beginning, people might think we've got an obsession in New South Wales concerning corruption, and in particular corruption within the police service, but it's a genesis that's probably occurred in a lot of areas.

Mr Marchese: You mentioned you have a problem of access in terms of some of the people outside of the cities having knowledge of what the Ombudsman does or its powers or how you are able to reach that person for a complaint. Obviously that's a challenge for you in terms of how you reach them and letting them know of their rights to be able to deal with a particular problem. How are you dealing with that?

Mr Fraser: The Ombudsman, as I said, came to Coffs Harbour not long ago, or representatives of the Ombudsman's office came, and I was extremely impressed with the way she handled it, because there was advance media notification right across my electorate that the Ombudsman was coming. It meant that the media area which we cover, which is fairly large -- it's pretty well the whole from Taree to the border, which is two thirds of the north coast, and my understanding on the result of that was that a lot of complaints came, or a lot of people from out of my electorate but in the southern district, from Nambucca and Kempsey, which is only a matter of 60 miles or 100 kilometres for them to come, came up and saw the Ombudsman.

So she has been very proactive in that particular sense, which is good, and I think in a lot of small communities, once the Ombudsman has been there and has been seen to be doing something, the opportunity for other people then to access it becomes greater because of word of mouth.

Mr Gaudry: Following upon the committee's last report, the Ombudsman did develop an access and awareness plan, which she is pursuing. As well as that, if a complainant goes to the police, they are tasked to advise them of the role of the Ombudsman in the investigation of police complaints as well. If we take that and if we also take the role of the ICAC and the fact that both of those bodies have got a proactive education and awareness program, more and more people are aware of those avenues in terms of dealing with complaints.

As well as that I guess the issue is that there is a systemic impact in terms of an awareness of probity in government, if I can put it that way, and people are perhaps quick to say, "I'll report that to the Ombudsman," or "The ICAC will hear about this." So that's perhaps part of the whole process of awareness that's grown.

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Mr Marchese: Right. The last one is an interesting point in terms of how we deal with individual complaints versus systemic. In a way, they're very much interrelated. As you do that work across the whole of the state, it becomes in itself a systemic way of dealing with problems. I find that interesting.

Mr Gaudry: In terms of our recent protected disclosures review, we've made very strong recommendations that, firstly, a body be centralized within the office of the Ombudsman to give the public a first point of call and advice, and secondly that within the senior executive service of government departments, a part of their contract be that they set up proper systems within their departments to support protected disclosures. So it's a development of an understanding of a code of conduct both in terms of behaviour and also protection of those people who are making disclosures. Gradually the public sector is being educated, I suppose, about the role of all of the investigative authorities.

Mr Fraser: I think the one that had the major impact in New South Wales was the ICAC, the Independent Commission Against Corruption, which was set up in 1989. It took on itself a lot of corrupt conduct within, or reported corrupt conduct within, government and within government departments.

It became very public, and it's basically got to a stage now where it becomes a threat. People will say, "I'll take that to ICAC," or "That is ICACable." Because of that process, people are aware of maladministration or corruption within government departments, and when the statement is made, normally someone will say, "The Ombudsman's there," or "You should take it here." Often I'll find myself saying it. People will say, "Look, I want this fellow reported to ICAC," and I'll say, "Well, you can do it, but I think the sensible way to go would be along this path." A lot of the time it is the Ombudsman where it should go. So that process really gave the public awareness that they do have a right of appeal to a statutory authority of some sort.

Mr R. Gary Stewart (Peterborough): Welcome and g'day to you.

Mr Fraser: G'day, mate.

Mr Stewart: We keep saying "eh," so you can take that back there.

Mr Gaudry: You must be from Queensland.

Mr Stewart: I spent a little time down there. It was most enjoyable.

Going back to how your committee does not have any function as an appeal body, if you are not pleased with a decision that has been made by the Ombudsman, where does it go from there?

Mr Fraser: We tend not even to involve ourselves. Our ambit is not one of individual appeals, and it's one that I would really dread, if we ever came into that area. We do have some people who are somewhat zealous in their particular causes and have gone to the Ombudsman and the Ombudsman said no, and then we get reams of letters from them saying, "This is wrong." You end up reading the correspondence purely out of the fact that it may be amusing. It may be something that you look at and you find it's almost vexatious in its application. We just write back and say, "Sorry, we do not have the authority or the power to take that on."

To a large extent, I wouldn't like that power within the committee because I think you'd find yourself -- one of the things I wrote down here when you mentioned you have that recommendation-denied service here is, how long does it take? I can see the committee sitting forever on some of these cases where people just would refuse to accept that recommendation denied.

What happens? What did you say, 73% of cases you support? Who becomes the appeal body after that as far as you're concerned? I think it's very brave of you to have that particular facility within the committee.

Mr Gaudry: Let's just say, though, we're looking at process and the procedures of the office. We've had several complaints to us in terms of delay. In that situation, we would write to the Ombudsman covering the letter that we may have received from the constituent, expressing our concern and seeking a report from the Ombudsman either in writing or in terms of taking up the general issue at their general meeting, and therefore impacting on the office of the Ombudsman in that way to sharpen up procedures, to deal in a more timely fashion with complaints. That's certainly something that will be arising at the next general meeting with the Ombudsman, but we would not be seeking appeal or direct intervention in the individual case.

Mr Stewart: The Ombudsman then is the final decision-maker for this.

Mr Gaudry: Yes.

Mr Stewart: So there is no recourse after that?

Mr Gaudry: No.

Mr Stewart: That's it. It's final.

Ms Minnican: The only judicial appeal that can be exercised in relation to the Ombudsman's functions is an appeal to the courts regarding the exercise of the jurisdiction. We've had a couple of cases in relation to police matters where the police commissioner took legal action, saying, "We think the Ombudsman is acting outside jurisdiction." None of those has ever been upheld. That's the only kind of action you can take.

Mr Gaudry: Local government councils have at times taken the Ombudsman before the court, and as Helen has stated, to date the Ombudsman has a strikeout rate of 100%.

Mr Stewart: Do you feel that because your committee was the commissioners regarding police corruption and it was because you had about 5,000 complaints etc, your committee will become a committee that will form other commissions to look at other things within the country? I am interested. The one big one you've had is the police corruption, and I assume that was because of complaints, but what does your committee do after that? You've done that. Where do you go from there?

Mr Gaudry: I don't think there is any chance that the committee will forfeit a role, because the issue of dealing with the Police Integrity Commission will be certainly ongoing, but just in terms of the way that royal commission was set up, it did not come in any way from the Ombudsman's committee.

During the last term of the Parliament, we had a finely balanced Parliament. The balance of power was held by three independents, and those independents entered into a compact of reform with the then Liberal-National state government. There were many reforms made within the parliamentary process, but also one of those independents, Mr John Hatton, had had a 20-year campaign concerning corruption within the police force.

It was within that context that he obtained the support of the opposition to set up a royal commission into the police service, and that royal commission has now sat for about 18 months. Following upon its interim report, the Parliament enacted the Police Integrity Commission Act to set up a permanent body to take over from the royal commission, which of course has been a very incisive investigation into corruption, but obviously it's not going to be a permanent royal commission from the terms of cost, of course, and so this body has been set up following that.

Our committee then has been given the oversight role, the same as we have with the Ombudsman. Once again, because these bodies are independent of executive government and have enormous power in terms of compulsion, in terms of the capacity to wiretap, to issue warrants and to seek entry and to take all records, there has to be some line of responsibility and accountability, and the parliamentary committee performs that function.

So we will have an oversight role, and I think quite an important one.

Mr Stewart: Long-term.

Mr Gaudry: In the long term.

Mr Fraser: You see, in both cases the Ombudsman's role is an evolving role and will continue to be so, and more specifically and especially the Police Integrity Commission. It'll give this committee the opportunity to watch its actions, to look at whether there is a need for legislative change with regard to the way they operate in both the Ombudsman and the Police Integrity Commission. That role is always there and the committee will be the watchdog in that regard to probably ensure that both those areas are matching public expectations.

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Mr Gaudry: I wonder if I might ask a question at the moment. It intrigues me, as Andrew has said, about the recommendation-denied reports. You said that a great degree -- 72% -- were supported and that there are some areas where government obviously does not accept the view of the Ombudsman. Does the committee have any role in that or does it then get into an area which is obviously political and perhaps a difficult issue for the committee?

The Chair: I'll just begin with the response that you appreciate that the members of this committee have not been involved with that process -- it hasn't occurred for a while -- but the institutional memory of this committee resides in Mr Kaye. I'll invite him to respond.

Mr Kaye: I should qualify as well that my involvement with the committee is limited to one year. One of the concerns of the previous Ombudsman committee was the role of the Ombudsman once a recommendation-denied case had been presented to the assembly and referred to the committee, and the committee had conducted hearings where the committee would hear from representatives of the Ombudsman's office and from the governmental organization concerned. Let's say you have a situation where the committee has come up with a recommendation in support of the Ombudsman. What happens at that stage?

Previous ombudsmen used to include in their annual reports what were known as recommendation-denied tables, which in one column would list the recommendation of the Ombudsman and in the next column the recommendation of the Ombudsman committee and in the third column what action the governmental organization had taken in response to the recommendations of the Ombudsman and the committee. Those tables would appear in each annual report and a case would be carried forward from one report to another until it had been resolved. That was one way in which the committee was able to monitor what was happening to its recommendations.

The current Ombudsman feels that once she has submitted a recommendation-denied case to the assembly it's for the assembly and the committee to then continue with it and that it is not her responsibility to include these recommendation-denied tables in the annual report. So they are no longer included and, as I said, as well there just haven't been any recommendation-denied cases referred to this committee in the last few years.

Mr Fraser: Do you feel that the reason there are no recommendation-denied cases is that the committee has the power to oversee those and therefore the Ombudsman would be less inclined to deny, or not?

Mr Kaye: You're asking why there have been fewer recommendation-denied cases? I should say that the Ombudsman had said that her ability to bring a recommendation-denied case before this committee is very valued because of the publicity generated and the political pressure that can be generated on the governmental organization to implement her recommendations.

As to why there have been fewer recommendation-denied cases in the last few years, that was a question the previous committee faced when it conducted an overall review of the Ombudsman's office and really wasn't able to reach a definitive answer. It made a recommendation that where the Ombudsman has made a formal recommendation to a governmental organization, information about that recommendation should be included in the annual report of the Ombudsman along with any corrective action the governmental organization has taken in response, so that the committee can have a better sense as to what kind of recommendations, how many formal recommendations have been made and what the response of the governmental organization has been, to better understand why cases in the last few years have not reached the recommendation-denied stage.

It is a question which the previous committee felt it could speculate on but could not reach any definitive answers on. So in the report there was this recommendation pertaining to what the Ombudsman should include additionally in the annual report. It was modelled on the requirement in Quebec regarding their Ombudsman and what goes into his or her annual report.

Mr Pat Hoy (Essex-Kent): I have a question regarding the budget of the Ombudsman. You stated that it was about $4.5 million in the past budgetary findings. Are there any controls on the budget of the Ombudsman? How will you deal with the budget next year, for example? Is it a stated amount allocated? Is it open-ended?

Mr Fraser: All government departments, whether the Ombudsman or the Department of Conservation and Land Management, will apply to Treasury via their ministries for budget allocations. At the end of the day Treasury allocates budgets, and all statutory offices argue their budgets back through the process of ministry and Treasury. It's probably one of history and one of where the office will go in the next 12 months or whatever. I think it's historical in Australian politics, whether in New South Wales or any other state, or federally, that no government department ever sees a reduction in budgets unless it's forced on them. You'll find that they'll fight to keep their budgets, no matter what. But the Ombudsman's area does increase as more awareness becomes available, but it's up to the Ombudsman to argue that case back through the relevant ministry and the Treasury in order that an allocation is made.

Mr Gaudry: The Ombudsman actually comes under the Premier in New South Wales, so the Premier obviously has a strong view in terms of the present direction against corruption. The funds and resources inquiry by the committee is obviously put into the Parliament, some very strong and persuasive arguments in terms of improving funding for access and awareness. Therefore, there has been an improvement. The process by which that decision was made, though, would have been once again, as Andrew said, through the budgetary process within departments. We have, you'd say, coming from the side an influence, I'm sure, in terms of funding for the Ombudsman's office, but we certainly don't determine it.

Mr Fraser: Also, Treasury officials are the greatest enemy of any minister or department. They would monitor any increases as to performance criteria and increased result from the Ombudsman. If the Ombudsman wasn't demonstrating that the budget was needed, there'd be a fair amount of pressure by the Premier's department to reduce the budget, but I don't think it would be something that would happen.

Mr W. Leo Jordan (Lanark-Renfrew): Welcome to our committee this morning. I appreciate your taking time to be with us. My son and his wife just spent a year a short time ago in Sydney on a teacher exchange and enjoyed it very much.

The point that comes to mind that has been partly explained here just previously is that you had gone for 15 years without a committee, I understand.

Mr Gaudry: From 1974 to 1990, yes.

Mr Jordan: We are pretty much in the reverse. We have had a committee for about that period of time and we're at the point where we wonder, for what purpose? This committee is starting to look like another form of bureaucracy around the Ombudsman, because we don't really have any great teeth, if you will, to direct or assess decisions made by the Ombudsman. As you say, the Ombudsman is appointed by the Premier and, as far as I'm concerned, seems to be answerable to the Premier. This committee has very little input as to the amount to budget for that or the decisions made by the Ombudsman. In fact, as was pointed out, the previous committee, which I was on, was seriously considering the need to continue this committee. I would just ask you for your comments.

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Mr Fraser: Yes, that can happen. You can get to a stage with any committee, especially a committee of the Parliament, where your role is no longer being fulfilled. But at the same time, if a committee is there, even if it only meets semiregularly, the fact that it is there to oversight the process, and possibly the legislative process, as far as we're concerned, is something that gives the opportunity for appeal from the Ombudsman.

Our last Ombudsman, Mr Landa, was very interested in areas of freedom of information and things such as that, and he would put reports out that the committee would consider. He would come to the committee in the general meetings and he would tell us what he would like the government to do and we'd ignore it -- not necessarily. The opportunity in our committee is one of evolution. You can do that. With your committee, possibly the committee might need further powers; I don't know.

Mr Gaudry: You said that the Ombudsman was answerable to the Premier. There's a fairly robust situation in New South Wales at times between those investigative authorities and the government in power. If we take the ICAC, for instance, the ICAC was set up by the former Liberal-National government. Many of its first actions were actually directed against ministers within that government. In fact, eventually the Premier appeared before the ICAC and subsequently resigned.

The Auditor General at the moment has a very robust relationship with government and often makes comments which ruffle the feathers of ministers and the Treasurer. The Ombudsman also can take a very strong role, although it appears much more a cooperative role. The committee forms a linkage between the Ombudsman and government or, particularly, between departments so that we have a role there as well.

You're saying obviously that perhaps you're in a mature stage of the relationship.

Mr Jordan: It would appear to be. I'm not talking about myself.

I was wondering too -- and perhaps, Mr Chairman, you could give me an explanation -- whether the fact that this committee was not part of the act in the beginning -- I don't think the act refers to a standing committee. I think that was something that was created by the Legislative Assembly afterwards, after the appointment of the Ombudsman and the act. So in the beginning the Premier appointed the Ombudsman, whoever it was. It was Mr Maloney, was it not, the first one? From there the Legislative Assembly decided that perhaps there was a need for a standing committee to assess. It would seem the need in Australia seemed to be a problem with the police.

Mr Gaudry: No, no.

Mr Jordan: Seventy per cent of your requests came from that area.

Mr Gaudry: Yes, but the issue really is more that there is a -- "mediation" is the wrong word -- place of review between executive government and the authority itself, and both an oversight and recommendation role which I think has been very valuable. As Andrew has said, the role of the Ombudsman and the role of ICAC is to a degree an organic thing. It isn't set in concrete. We perform quite an important function there.

Mr Jordan: I think as Mr Morin has pointed out, we've gone from $1.5 million to $7.5 million in expenditures.

Mr Morin: Let me just add to what Mr Jordan is saying. If my memory doesn't fail me, I recall quite well that it was at the instigation of Mr Maloney that the select committee on the Ombudsman be formed. Here's the reason: The Ombudsman answers to the Legislature; the Ombudsman is an extension of the Legislature. The Ombudsman was not to come in the House and give his report to the Parliament; he came and met with the committee, who in turn would pass on the information to the Parliament, which makes sense.

You made the suggestion to have the Ombudsman answer to the Premier. The Ombudsman has to be totally apolitical. The Ombudsman cannot be a tool of the government in power. The Ombudsman is a tool of the Legislature, and that's the purpose of it all, to make sure there is a voice, there is someone listening to the little guy who cannot fend for himself; also to prevent high costs. Just think of the system before. If you had a grievance against the government, you had to go to court, and many people couldn't afford to do it. Now we have an Ombudsman who can do that. That means that anyone can go to the Ombudsman. If he feels aggrieved by the administration of the government, he can go there.

When you think of the system, it's an excellent system, but to change it -- I think your implication, the fact that you're there listening to what the Ombudsman has to say, is extremely important. Can you imagine if the Ombudsman was on his own? Can you imagine, if an agency was on its own, the damage that could be done, the decisions that could be made, the money that could be spent? We're there to make sure that the --

Mr Jordan: Are we, though? How effective is the committee?

Mr Morin: I don't want to start a debate --

Mr Gaudry: Sounds good to me.

Mr Morin: -- but I think it is very effective. But at the same time, I think the responsibility of the members of Parliament is to understand how the Ombudsman operates and really create a team. This sometimes, and I've seen this, at the beginning --

Mr Jordan: If I might interrupt there, that is what's happening now. In my constituency office, I'm working as a team with the Ombudsman.

The Chair: I would suggest that we pursue this angle on our own time later.

Mr Jordan: I just was interested in the fact that they went 15 years without the committee. We went with it and now we're at a plateau where some of our committee members are not interested in attending because they see no purpose.

Mr Fraser: Possibly we went the other way and we saw the need, and just the fact that the committee is there sends a very strong message in all directions.

Mr Jordan: It's very expensive.

Mr Gaudry: The committee is expensive?

Mr Jordan: In our own case, as pointed out, we went from $1.5 million to $7.5 million.

Mr Gaudry: Yes, but that's the office, not the committee.

Mr Jordan: I know, but I mean --

Mr Gaudry: I think the committee system is a very economical system in terms of providing an oversight to the authority and monitoring its actions. Basically, with the committee structure in our Parliament, we have a dedicated project officer and an assistant, but the assistant also assists other committees, and the services of the clerk are shared also, the parliamentary officers. Then of course for the members of the committee, it's part of the normal parliamentary workload. So it is a very inexpensive system of providing, as you've said very well, that mediation in a way between the Legislative Assembly and the council, in our case, and the Ombudsman, who are, after all, responsible to Parliament, not the executive government.

The Chair: I'm going to have to comment that our Legislature just made the operations of this committee a little more efficient by eliminating per diems.

We have 10 minutes left and I have Mr Lalonde and Mr Froese. I want to get them both on.

1150

Mr Jean-Marc Lalonde (Prescott and Russell): Mr Kaye just explained a little while ago the steps that have to be followed before a case is handled by the Ombudsman. I believe in Australia you must have workers' compensation cases also.

Mr Gaudry: Yes.

Mr Lalonde: How does it work over there? After the application is submitted to WCB, as we call it, instead of going to the Workers' Compensation Board if the application is denied, can the people go directly to the Ombudsman or is there an appeal process that has to be followed?

Mr Fraser: It's pretty well a direct legal process.

Mr Lalonde: It's pretty well direct?

Mr Fraser: A direct legal process on the basis of, if compensation is denied to any worker or withdrawn, there is a process through the industrial courts where that person would appeal. So it wouldn't go to the Ombudsman; it would go through a legal process of its own.

Mr Gaudry: In fact, we have a schedule appended to the Ombudsman Act of excluded jurisdictions. It would be an excluded jurisdiction.

Mr Lalonde: In our case here it has to go through the appeal process, and just lately I was really surprised and satisfied with a position the Ombudsman has taken. Within a week after taking the case to the Ombudsman, they found out that the last appeal had not been gone through. They have an appeal to the last or the third step, and immediately the response came within a week that the appeal process has to be followed before they take over or handle the case. So in this case I was really pleased with the position the Ombudsman has taken, the time they have taken, within a week.

Mr Gaudry: You've got a different brief, your Ombudsman, than ours.

Mr Lalonde: There are quite a few cases of WCB that are going through the Ombudsman in the province.

Mr Gaudry: In our state at the moment, the issue of what we call work cover, workers' compensation issues, is quite -- they're on the agenda certainly of most members of Parliament.

Interjection.

Mr Lalonde: Which in other words could be very costly for the person applying to get the compensation who has been denied the compensation.

Mr Fraser: A lot of the areas of conflict within workers' compensation in New South Wales are areas of common law, which is negligence rather than the compensation itself. The compensation structure in New South Wales is fairly good, but there are areas -- I have a fellow at the moment who has a major injury, and his award only allows him 26 weeks' compensation. He's employed by his own company; he's paid in hundreds of thousands of dollars over the years. He's somewhat upset. But once again, it's outside of that jurisdiction of the Ombudsman. It goes back to industrial awards that are negotiated via employers and unions to a large extent.

Mr Froese: Comments were made before about, what does our committee really do? If our committee had the power and jurisdiction that you've got, especially as documented in your roles and functions, I don't think our committee would have a problem with it. I think we're really struggling with -- I hate the terminology of "cases denied" or whatever it was. Why don't you just tell if they're solved or not solved, what the problem is? But I think one of the reasons the committee dealt with it, to my understanding, and I could be wrong, was because this committee doesn't have a role. If we had the role to monitor, review and exercise and to draw matters to the attention of the Legislative Assembly or change the functions or the structure as you have, I think this committee could live well within those realms.

When I found out that we were dealing with specific cases, I totally agree with the way your system is. Why are we getting involved? The Ombudsman is the final one. Documentation states that if the case isn't being dealt with or is delayed, then you get involved as well. It's to get an answer, whatever that answer is.

Mr Gaudry: It's more to insist that there be procedures in place to deal in a timely manner with any complaint, rather than that individual complaint. The individual complaint to us highlights the difficulty in a procedural sense that must be within the Office of the Ombudsman or it highlights the inadequacy of perhaps some of the offices operating within the Ombudsman's area. Therefore we would be questioning about the processes and the procedures, not the individual case.

Mr Froese: I guess the comments I made were more of a statement than anything else, but do you feel that a particular Ombudsman, a particular individual and personality, has a lot to do with the level of cooperation and taking the jurisdiction or the act and pushing it one way or the other, that it depends largely on the personality of the individual, and how they interpret the act determines if the Ombudsman is effective or not effective?

Mr Gaudry: I don't have the range of experience to state that, but I do know, having been on the ICAC committee of the Parliament prior to coming to this committee, that certainly the esprit de corps of the whole office has a lot to do with the Ombudsman or the ICAC commissioner in charge, and obviously they also have their areas of interest as well. So I think it does have a lot of impact. But as Andrew has said, certainly our present commissioner is very, very keen to be proactive and get the office out into the community as much as possible.

Mr Fraser: Our present Ombudsman was -- what was she? Commissioner for ethnic affairs --

Ms Minnican: No, human rights and then equal opportunity.

Mr Fraser: -- prior to coming to the job, so she has an absolute interest in ensuring access and ensuring awareness of the position because of her previous position, which has brought with it basically a breath of fresh air.

Ms Minnican: And children's magistrate.

Mr Fraser: Oh, yes, and she was a children's magistrate prior to that.

Mr Gaudry: So that indicates an area of interest.

If I might, I note here in the information supplied there's certainly a massive number of recommendations in terms of the change, perhaps, in the role of the committee. Have they been acted on? Have any of those been acted on?

The Chair: I'm going to invite Philip to respond to that question.

Mr Kaye: Are you referring to the recommendations in the 1993 report?

Mr Gaudry: Yes, the 1993 report.

Mr Kaye: That report was tabled but never debated in the House. As I mentioned, in December of last year the House referred the report to this committee for further review and that's where things stand.

Mr Gaudry: But does the committee see that as an area of current activity, or is it something that, as Mr Jordan said, perhaps you're not moving ahead on at the moment?

The Chair: This committee has been examining that report, examining those recommendations, and is in the process of forming a view as to what further steps might be merited.

Mr Froese: That's putting it very diplomatically.

The Chair: It's about 12 o'clock. For that reason only, I suggest it's about time we adjourn. Before doing that, though, I want to extend the gratitude of this committee to Mr Gaudry, Mr Fraser and Ms Minnican for joining us today and sharing with us your thoughts, perspectives and experiences with your service on the Ombudsman committee of New South Wales.

I understand that you'll be joining us this afternoon to catch part of our question period, which should make you feel quite at home. I've always thought it's quite similar to Australian rules football. I'll be interested in your perspective on that.

Mr Gaudry: We have a peculiar name for the Legislative Assembly in New South Wales. It's referred to nationally as the Bear Pit. Really, in width, it's not too much wider than the chamber that we're in at the moment, so you are actually less than two sword lengths from your opposition. There's often a robust exchange.

The Chair: I'm not sure we would survive if we didn't have a little bit more room to work with.

Mr Fraser: It's a very robust chamber. Actually, it's quite funny because a lot of school children come into our chamber and I've often heard the comment, "If we acted like that at school, we'd be disciplined."

Mr Froese: So you have the same problem over there as we have here.

Mr Fraser: I suppose there's a little bit of poetic licence from MPs when they've been locked up in chambers especially. It's a bit like boarding school. You've got to let off steam somehow, so it's a matter of as long as it's done within certain rules and regulations and the Speaker doesn't ask you to retire for a day or two.

The Chair: With those very encouraging remarks, we adjourn the meeting for today.

The committee adjourned at 1200.