An Act to provide for the appointment of a Commonwealth
Ombudsman, a Defence Force Ombudsman and a Postal Industry Ombudsman, and to
define their respective functions and powers
Part I—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Ombudsman
Act 1976.
2
Commencement [see Note 1]
This Act shall come into operation on a
date to be fixed by Proclamation.
3
Interpretation
(1) In this Act, unless the contrary
intention appears:
ACA means the Australian Communications
Authority.
ACC means the Australian Crime Commission
established under section 7 of the Australian Crime Commission Act 2002.
ACT enactment means an enactment as defined
by section 3 of the Australian Capital Territory (Self‑Government)
Act 1988.
AFP appointee has the same meaning as in the Australian
Federal Police Act 1979.
AFP Commissioner means the Commissioner
within the meaning of the Australian Federal Police Act 1979.
AFP conduct issue has the same meaning as in
the Australian Federal Police Act 1979.
AFP practices issue has the same meaning as
in the Australian Federal Police Act 1979.
Australia Post means the Australian Postal
Corporation.
authorized person means:
(a) a person appointed by the
Ombudsman to be an authorized person for the purposes of this Act; or
(b) a person included in a class of
persons appointed by the Ombudsman to be authorized persons for the purposes of
this Act.
Board of the ACC means the Board of the
Australian Crime Commission established under section 7B of the Australian
Crime Commission Act 2002.
case manager has the same meaning as in the Employment
Services Act 1994.
chief executive officer of a court or tribunal
means the person holding, or performing the duties of, one of the following
offices:
(a) Clerk of the High Court;
(b) Registrar of the Federal Court of Australia;
(c) Chief Executive Officer of the
Family Court of Australia;
(ca) Chief Executive Officer of the
Federal Magistrates Court;
(d) Registrar of the Administrative
Appeals Tribunal;
(e) an office declared by the
regulations to be an office of chief executive officer of a court or tribunal
for the purposes of this Act;
(f) an office prescribed by the
regulations in lieu of an office referred to in paragraph (a), (b), (c), (ca)
or (d).
Commonwealth‑controlled company means
an incorporated company in which the Commonwealth has an interest that enables
the Commonwealth:
(a) to control the composition of the
board of directors of the company; or
(b) to cast, or control the casting
of, more than one‑half of the maximum number of votes that might be cast
at a general meeting of the company; or
(c) to control more than one‑half
of the issued share capital of the company (excluding any part of that share
capital that carries no right to participate beyond a specified amount in a
distribution of either profits or capital).
Commonwealth service provider has the meaning
given by section 3BA.
Department means a Department within the
meaning of the Public Service Act 1999, but does not include the branch
of the Australian Public Service comprising the transitional staff as defined
by section 3 of the A.C.T. Self‑Government (Consequential
Provisions) Act 1988.
Deputy Ombudsman means a Deputy Commonwealth
Ombudsman.
Deputy Ombudsman (Defence Force) means the
Deputy Ombudsman who is, by virtue of a notice under subsection 23(1) that is
in force, designated as the Deputy Ombudsman (Defence Force).
eligible case manager means an entity (within
the meaning of the Employment Services Act 1994):
(a) that is, or has at any time been,
a contracted case manager within the meaning of that Act; and
(b) that is not:
(i) a Department; or
(ii) covered by paragraph (a),
(b), (ba), (bb), (c) or (d) of the definition of prescribed authority.
enactment means, subject to section 3B:
(a) an Act;
(b) an Ordinance of the Australian
Capital Territory;
(c) an Ordinance of the Territory of Christmas
Island or of the Territory of Cocos (Keeling) Islands;
(d) an instrument made under an Act or
under an Ordinance referred to in paragraph (b) or (c); or
(e) a law (not being an Act, an
Ordinance referred to in paragraph (c) or an instrument referred to in paragraph (d))
in force in the Territory of Christmas Island or the Territory of Cocos
(Keeling) Islands;
but does not include the Norfolk Island Act 1979,
the Northern Territory (Self‑Government) Act 1978 or an
enactment of Norfolk Island or of the Northern Territory.
enactment of Norfolk Island
means:
(a) a law or Ordinance referred to in paragraph (a),
(b) or (c) of the definition of enactment in subsection 4(1) of
the Norfolk Island Act 1979; or
(b) an instrument (including rules,
regulations or by‑laws) made under such a law or Ordinance.
enactment of the Northern Territory
means:
(a) a law or Ordinance referred to in paragraph (a)
or (b) of the definition of enactment in subsection 4(1) of the Northern
Territory (Self‑Government) Act 1978; or
(b) an instrument (including rules,
regulations or by‑laws) made under such a law or Ordinance.
ESRA means the Employment Services Regulatory
Authority established under the Employment Services Act 1994.
law enforcement agency has the same meaning
as in the Australian Crime Commission Act 2002.
officer means:
(a) in relation to a Department:
(i) a person (including the
principal officer of the Department) employed, whether in a permanent or
temporary capacity, in the Department; or
(ii) any other person (not
being a Minister) authorized to exercise powers or perform functions of the
Department on behalf of the Department; or
(b) in relation to a prescribed
authority (other than an eligible case manager):
(i) the person who
constitutes, or is acting as the person who constitutes, the authority;
(ii) a person who is, or is
acting as, a member of the authority or is a deputy of such a member;
(iii) a person who is
employed in the service of, or is a member of the staff of, the authority,
whether or not he or she is employed by the authority; or
(iv) a person authorized by
the authority to exercise any powers or perform any functions of the authority
on behalf of the authority; or
(c) in relation to a prescribed
authority that is an eligible case manager:
(i) if the eligible case
manager is an individual—the individual; or
(ii) if the eligible case
manager is a body corporate—a director, the secretary or an employee of the
body corporate; or
(iii) if the eligible case
manager is a partnership—a partner in, or an employee of, the partnership; or
(iv) if the eligible case
manager is an unincorporated association—a member of the executive committee,
or an employee, of the unincorporated association; or
(v) in any other case—an
officer or employee of the eligible case manager.
Note: For the meaning of officer for
the purposes of Part IIB, see section 19G.
Ombudsman means the Commonwealth Ombudsman.
ombudsman scheme means a scheme providing for
the investigation of complaints by consumers about matters relating to
decisions or actions of the holders of licences or authorities granted under an
enactment.
Ordinance, in relation to the Australian
Capital Territory, includes a law of a State that applies, or the provisions of
a law of a State that apply, in the Territory by virtue of an enactment (other
than a law that is, or provisions that are, an ACT enactment).
Parliamentary Department means:
(a) the Department of the Senate; or
(b) the Department of the House of
Representatives; or
(c) the Department of the
Parliamentary Library; or
(d) the Department of the
Parliamentary Reporting Staff; or
(e) the Joint House Department.
postal or similar service
includes:
(a) a postal service; and
(b) a courier service; and
(c) a packet or parcel carrying
service.
PPO (short for
Private Postal Operator) means an entity (other than
Australia Post) that provides a postal or similar service, whether or not that
entity also provides other services.
prescribed authority means:
(a) a body corporate, or an
unincorporated body, established for a public purpose by, or in accordance with
the provisions of, an enactment, other than:
(i) an incorporated
company or association;
(ii) a body that has the
power to take evidence on oath or affirmation and is required, or is expressly
permitted, by an enactment to be constituted by, or to include among its
members, a person who is a Justice or Judge of a court created by the
Parliament or a person who has, by virtue of an Act, the same status as a
Justice or Judge of such a court;
(iii) a body that, under subsection (2)
or the regulations, is not to be taken to be a prescribed authority for the purposes
of this Act; and
(v) a Royal Commission; or
(b) a Commonwealth‑controlled
company that is a prescribed authority by virtue of section 3A; or
(ba) a body corporate, or an
unincorporated body, established by the Governor‑General or by a Minister
and declared by the regulations to be a prescribed authority; or
(bb) a chief executive officer of a
court or tribunal; or
(c) the person holding, or performing
the duties of, an office established by an enactment, other than:
(i) the chief executive officer
of a court or tribunal or a person who, for the purposes of this Act, is to be
taken to be a member of the staff of the chief executive officer of a court or
tribunal; or
(ii) a person who, under subsection (3)
or the regulations, is not to be taken to be a prescribed authority for the
purposes of this Act; or
(d) the person performing the duties
of an appointment declared by the regulations to be an appointment the holder
of which is a prescribed authority for the purposes of this Act, being an appointment
made by the Governor‑General, or by a Minister, otherwise than under an
enactment; or
(e) an eligible case manager.
principal officer means:
(a) in relation to a Department of the
Australian Public Service—the person holding, or performing the duties of, the
office of Secretary of the Department; or
(c) in relation to a prescribed
authority (other than an eligible case manager):
(i) if the regulations
declare an office to be the principal office in respect of the authority—the
person holding, or performing the duties of, that office; or
(ii) in any other case—the
person who constitutes, or is acting as the person who constitutes, that
authority or, if the authority is constituted by 2 or more persons, the person
who is entitled to preside at any meeting of the authority at which he or she
is present; or
(d) in relation to a prescribed
authority that is an eligible case manager:
(i) if the eligible case
manager is an individual—the individual; or
(ii) in any other case—the
individual primarily responsible for the management of the eligible case
manager.
Note: For the meaning of principal officer
for the purposes of Part IIB, see section 19G.
registered PPO means a PPO that is registered
for the purposes of Part IIB (see section 19ZA).
Note: In certain circumstances, a PPO that is no
longer registered for the purposes of Part IIB may still be treated as a
registered PPO (see section 19J).
responsible Minister, in relation to a
matter, or to action taken in or in relation to a matter, means:
(a) if a Department of the Australian
Public Service is responsible for dealing with the matter—the Minister
administering that Department; or
(c) if a prescribed authority referred
to in paragraph (a) of the definition of prescribed authority
is responsible for dealing with the matter—the Minister administering the
enactment by which, or in accordance with the provisions of which, the
prescribed authority is established; or
(d) if a prescribed authority referred
to in paragraph (c) of that definition is responsible for dealing with the
matter—the Minister administering the enactment by which the office is
established; or
(da) if a prescribed authority referred
to in paragraph (e) of that definition is responsible for dealing with the
matter—the Minister administering the Employment Services Act 1994; or
(e) if any other prescribed authority
is responsible for dealing with the matter—the Minister declared by the
regulations to be the responsible Minister in respect of that authority;
or another Minister acting for and on behalf of that
Minister.
Secretary, in relation to a Department, means
the person who is the Secretary of the Department for the purposes of the Public
Service Act 1999.
(2) An unincorporated body, being a board,
council, committee, sub‑committee or other body established by, or in
accordance with the provisions of, an enactment for the purpose of assisting,
or performing functions connected with, a prescribed authority shall not be
taken to be a prescribed authority for the purpose of this Act, but action
taken by the body, or by a person on its behalf, shall, for the purpose of this
Act, be deemed to have been taken by that prescribed authority.
(3) A person shall not be taken to be a
prescribed authority by virtue of holding, or performing the duties of:
(a) an office whose duties the person
performs as duties of employment as an officer or employee of a Department or
as a member of the staff of a prescribed authority;
(b) an office of member of a body; or
(c) an office established by an enactment
for the purposes of a prescribed authority;
but any action taken by or on behalf of a person holding,
or performing the duties of, such an office shall, for the purposes of this
Act, be deemed to have been taken by the Department, body or authority
concerned.
(4) Where:
(a) a person who is not an officer of
a Department, or of a prescribed authority, for the purposes of this Act takes
action in the exercise of a power or the performance of a function that the
person is authorized to exercise or to perform, as the case may be, by reason
of his or her holding an appointment made by, or by reason of authority given
by, the Governor‑General, a Minister or the Secretary of a Department;
and
(b) the person does not exercise the
power or perform the function by reason of his or her holding, or performing
the duties of, an office established by, or in accordance with the provisions
of, an enactment or by reason of his or her being a Judge of a court of, or a
magistrate of, a State or Territory;
the action shall be deemed to be taken, for the purposes
of this Act, by the Department responsible for dealing with the matter in
connection with which the action is taken.
(4A) Notwithstanding subsection (4), where
a person is authorized to exercise a power or perform a function by reason of
his or her holding an appointment made by, or by reason of authority given by,
the Governor‑General, a Minister or the Secretary of a Department
otherwise than under an enactment, the regulations may provide that action
taken by the person in the exercise of that power or the performance of that
function shall not be deemed to be taken, for the purposes of this Act, by the
Department responsible for dealing with the matter in connection with which the
action is taken.
(4B) For the purposes of this Act, if:
(a) a person is not an officer of a
Department or prescribed authority; and
(b) the person is, or is an employee
of, a Commonwealth service provider of the Department or prescribed authority
under a contract; and
(c) for the purposes of the contract,
the person takes action in the exercise of a power or the performance of a
function for or on behalf of the Department or prescribed authority; and
(d) the person does not exercise the
power or perform the function by reason of:
(i) his or her holding, or
performing the duties of, an office established by, or in accordance with the
provisions of, an enactment; or
(ii) his or her being a
Judge of a court of, or a magistrate of, a State or Territory; and
(e) the regulations do not otherwise
provide;
the action is taken to be action taken by the Department
or prescribed authority.
(5) For the purposes of this Act, action that
is taken by an officer of a Department shall be deemed to be taken by the
Department:
(a) if the officer takes, or purports
to take, the action by virtue of his or her being an officer of the Department,
whether or not:
(i) the action is taken
for or in connexion with, or as incidental to, the performance of the functions
of the Department; or
(ii) the taking of the
action is within the duties of the officer; or
(b) if the officer takes, or purports
to take, the action in the exercise of powers or the performance of functions
conferred on him or her by an enactment.
(5A) Notwithstanding subsection (5), where
the person holding, or performing the duties of, an office established by an
enactment is, under the regulations, not to be taken to be a prescribed
authority for the purposes of this Act, the regulations may also provide that
action taken by an officer of a Department, being action in the furtherance of
the duties of that office, shall, for the purposes of this Act, be deemed not
to be action taken by that Department.
(6) For the purposes of this Act, action that
is taken by an officer of a prescribed authority shall be deemed to be taken by
the authority:
(a) if the officer takes, or purports
to take, the action by virtue of his or her being an officer of the authority,
whether or not:
(i) the action is taken
for or in connexion with, or as incidental to, the performance of the functions
of the prescribed authority; or
(ii) the taking of the
action is within the duties of the officer; or
(b) if the officer takes, or purports
to take, the action in the exercise of powers or the performance of functions
conferred on him or her by an enactment.
(6A) For the purposes of this Act, action that
is taken by a member of the Defence Force shall be deemed to be taken by the
Defence Force if the member takes, or purports to take, the action by virtue of
his or her being a member of the Defence Force, whether or not:
(a) the action is taken in connection
with, in the course of, or as incidental to, his or her service as a member of
the Defence Force; or
(b) the taking of the action is within
his or her duties as a member of the Defence Force.
(6B) Action taken by any person or persons by
way of, or in connection with, the appointment of a person to be the Chief of
the Defence Force, the Chief of Navy, the Chief of Army or the Chief of Air
Force is not action taken by the Defence Force or by a Department for the
purposes of this Act.
(6C) In this Act (other than subsection (6A)),
unless the contrary intention appears, a reference to a member of the Defence
Force or of an arm or part of the Defence Force includes a reference to:
(a) a person who has been a member of
the Defence Force or of that arm or part of the Defence Force; or
(b) a deceased person who was at any
time before his or her death a member of the Defence Force or of that arm or
part of the Defence Force.
(6D) For the purposes of this Act, action that
is taken by an officer of a registered PPO is taken to have been taken by the
registered PPO if the officer takes, or purports to take, the action because he
or she is an officer of the registered PPO, whether or not:
(a) the action is taken for or in
connection with, or as incidental to, the provision of a postal or similar
service by the registered PPO; or
(b) the taking of the action is within
the duties of the officer.
(7) In this Act, unless the contrary
intention appears, a reference to the taking of action includes a reference to:
(a) the making of a decision or
recommendation;
(b) the formulation of a proposal; and
(c) failure or refusal to take any
action, to make a decision or recommendation or to formulate a proposal.
(7A) In this Act, unless the contrary intention
appears, a reference to the Ombudsman of a State shall be read as a reference
to a person performing, under a law of the State, functions similar to the
functions performed by the Ombudsman.
(7B) For the purposes of a provision of this Act
(other than this subsection) in which a reference to the Ombudsman of a State
occurs:
(a) a reference to a State, in
relation to the Ombudsman of a State, shall be read as including a reference to
the Australian Capital Territory and a reference to the Northern Territory;
(b) a reference to a law of a State,
in relation to the Ombudsman of a State, shall be read as including a reference
to an ACT enactment and a reference to an enactment of the Northern Territory;
and
(c) a reference to a Department or
authority of a State, in relation to the Ombudsman of a State, shall be read as
including a reference to:
(i) the Australian Capital
Territory; or
(ii) a Territory authority
as defined by section 3 of the Australian Capital Territory
(Self‑Government) Act 1988;
as the case requires.
(8) A reference in this Act to the
international relations of the Commonwealth is a reference to the relations of
the Commonwealth with the Government of another country or with an
international organization.
(9) For the purposes of this Act, the
Australian Federal Police shall be deemed to be a prescribed authority.
(10) In the application of this Act in relation
to the Australian Federal Police, references in this Act to an officer of a
prescribed authority shall be read as references to an AFP appointee.
(11) For the purposes of this Act (other than subsection (6)),
the Defence Force shall be deemed to be a prescribed authority.
(12) In the application of this Act in relation
to the Defence Force:
(a) references in this Act to an
officer of a prescribed authority shall be read as references to a member of
the Defence Force;
(b) references in this Act to the
principal officer of a prescribed authority shall be read as references to the
Chief of the Defence Force; and
(c) references in this Act to the
responsible Minister, in relation to a matter in relation to a prescribed
authority, or in relation to action taken by a prescribed authority in or in relation
to a matter, shall be read as references to the Minister for Defence or another
Minister acting for and on behalf of the Minister for Defence.
(13) For the purposes of this Act, any matter
(including a report) concerning both the Defence Force and the Department of
Defence may, by arrangement between the Defence Force Ombudsman, the Chief of
the Defence Force and the principal officer of the Department of Defence, be
communicated by the Defence Force Ombudsman to either the Chief of the Defence
Force or the principal officer of that Department.
(13A) For the purposes of this Act, the ACC is
taken to be a prescribed authority.
(14) For the purposes of this Act:
(a) the officers (other than the chief
executive officer) of a court or tribunal; and
(b) the members of the staff of the
registry or registries of a court or tribunal; and
(c) officers or employees of a
Department, or of an authority of the Commonwealth, whose services are made
available to a court or tribunal; and
(d) persons declared by the
regulations to be members of the staff of a court or tribunal for the purposes
of this Act;
are to be taken to be members of the staff of the chief
executive officer of the court or tribunal.
(15) A reference in this section to an officer
of a court or tribunal does not include a judge of a court or a member of a
tribunal.
(16) In relation to anything that concerns:
(a) a chief executive officer of a
court or tribunal; or
(b) a Parliamentary Department;
a reference to which this subsection applies has effect in
accordance with subsection (18).
(17) Subsection (16)
applies to the following references:
(a) a reference in any of the
following provisions to the responsible Minister:
(i) paragraph 8(7A)(b);
(ii) subsections 8(8) and
(9);
(iii) paragraph 8(10)(c);
(iv) subsection 11A(5);
(v) subparagraphs
35(3)(b)(i) and (ia);
(b) the reference in paragraph
8(10)(a) to the Minister administering a Department;
(c) the reference in subsection 15(6)
to the Minister concerned.
(18) A reference to which subsection (16)
applies is to be read as follows:
(a) in the case of the chief executive
officer of a court, the reference is to be read as a reference to the chief
justice or chief judge (however described) of the court;
(b) in the case of the Registrar of
the Administrative Appeals Tribunal, the reference is to be read as a reference
to the President of the Administrative Appeals Tribunal;
(c) in the case of the chief executive
officer of a tribunal other than the Administrative Appeals Tribunal, the
reference is to be read as a reference to the president or principal member
(however described) of the tribunal or, if the tribunal consists of a single
member, as a reference to that member;
(d) in the case of the Department of
the Senate, the reference is to be read as a reference to the President of the
Senate;
(e) in the case of the Department of
the House of Representatives, the reference is to be read as a reference to the
Speaker;
(f) in the case of any other
Parliamentary Department, the reference is to be read as a reference to the
President of the Senate and the Speaker.
3A
Prescribed authorities: Commonwealth‑controlled companies
(1) A Commonwealth‑controlled company
is a prescribed authority unless:
(a) it is excluded by subsection (2);
or
(b) under the regulations it is to be
taken not to be a prescribed authority.
(2) Subject to subsection (3), a
Commonwealth‑controlled company is excluded for the purposes of paragraph (1)(a)
if:
(a) the company was a Commonwealth‑controlled
company immediately before the commencement of Part 6 of the Prime
Minister and Cabinet (Miscellaneous Provisions) Act 1994; and
(b) immediately before that
commencement the company was not a prescribed authority for the purposes of
this Act as then in force.
(3) A Commonwealth‑controlled company
that, but for this subsection, would be excluded by subsection (2) is not
so excluded if the regulations declare that the company is to be taken to be a
prescribed authority.
3B
Certain legislation relating to Australian Capital Territory not to be
enactment
(1) ACT enactments are not enactments.
(2) The Australian Capital Territory
(Self‑Government) Act 1988 and the Canberra Water Supply
(Googong Dam) Act 1974 are not enactments.
(3) Part IV, sections 29 and 30,
subsection 63(2), section 66 and Division 5 of Part X of the Australian
Capital Territory Planning and Land Management Act 1988 are not
enactments.
(4) Where the whole of an Act or Ordinance is
not an enactment, an instrument made under it is not an enactment.
(5) Where part of an Act or Ordinance is not
an enactment, an instrument made under the Act or Ordinance, as the case may
be, is not an enactment unless made for the purposes of the other part of the
Act or Ordinance, as the case may be.
3BA
Commonwealth service providers
A person is a Commonwealth service
provider of a Department or prescribed authority under a contract (the Commonwealth
contract) if:
(a) both of the following apply:
(i) the person, and the
Department or prescribed authority or the Commonwealth, are parties to the
Commonwealth contract;
(ii) for the purposes of
the Commonwealth contract, the person is responsible for providing goods or
services, for or on behalf of the Department or prescribed authority, to
another person who is not a Department or prescribed authority or the
Commonwealth; or
(b) both of the following apply:
(i) the person, and a
person who is (under a previous application of this section) a Commonwealth
service provider of the Department or prescribed authority under the
Commonwealth contract, are parties to another contract (the subcontract);
(ii) under the subcontract
and for the purposes of the Commonwealth contract, the person is responsible
for providing goods or services, for or on behalf of the Department or
prescribed authority, to another person who is not a Department or prescribed
authority or the Commonwealth.
3C
Application of Act
This Act applies both within and outside
Australia and extends to every external Territory.
3D
Application of the Criminal Code
Chapter 2 of the Criminal Code applies
to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Part II—Establishment, functions, powers and duties of the Ombudsman
Division 1—Establishment and functions
4
Establishment of offices of Ombudsman and Deputy Ombudsman
(1) For the purposes of this Act, there shall
be:
(a) a Commonwealth Ombudsman; and
(b) at least one, and not more than 3,
Deputy Commonwealth Ombudsmen.
(2) The functions of the Commonwealth
Ombudsman are to investigate complaints made to him or her under this Act and
to perform such other functions as are conferred on him or her by:
(a) this Act or the regulations; or
(b) another Act or regulations made
under another Act; or
(c) an ACT enactment or regulations
made under an ACT enactment.
(3) The Commonwealth Ombudsman, in performing
his or her functions in relation to the Australian Taxation Office, may, if he
or she so chooses, be called the Taxation Ombudsman.
(4) The Commonwealth Ombudsman, in performing
his or her functions in relation to immigration (including immigration
detention), may, if he or she so chooses, be called the Immigration Ombudsman.
(5) The Commonwealth Ombudsman, in performing
his or her functions in relation to the Australian Federal Police, may, if he
or she so chooses, be called the Law Enforcement Ombudsman.
5
Functions of Ombudsman
(1) Subject to this Act, the Ombudsman:
(a) shall investigate action, being
action that relates to a matter of administration, taken either before or after
the commencement of this Act by a Department, or by a prescribed authority, and
in respect of which a complaint has been made to the Ombudsman; and
(b) may, of his or her own motion,
investigate any action, being action that relates to a matter of
administration, taken either before or after the commencement of this Act by a
Department or by a prescribed authority; and
(c) with the consent of the Minister,
may enter into an arrangement under which the Ombudsman will perform functions
of an ombudsman under an ombudsman scheme established in accordance with the
conditions of licences or authorities granted under an enactment.
(2) The
Ombudsman is not authorized to investigate:
(a) action
taken by a Minister; or
(aa) action that constitutes
proceedings in Parliament for the purposes of section 16 of the Parliamentary
Privileges Act 1987; or
(b) action taken by a Justice or Judge
of a court created by the Parliament; or
(ba) action by the chief executive
officer of a court or by a person who, for the purposes of this Act, is to be
taken to be a member of the staff of the chief executive officer of a court:
(i) when exercising a
power of the court; or
(ii) when performing a
function, or exercising a power, of a judicial nature; or
(c) action taken by:
(i) a magistrate or
coroner for the Australian Capital Territory, the Territory of Christmas Island
or the Territory of Cocos (Keeling) Islands; or
(ii) a person who holds
office as a magistrate in a State or the Northern Territory in the performance
of the functions of a magistrate conferred on him or her by or under an Act; or
(d) action taken by any body or person
with respect to persons employed in the Australian Public Service or the service
of a prescribed authority, being action taken in relation to that employment,
including action taken with respect to the promotion, termination of
appointment or discipline of a person so employed or the payment of
remuneration to such a person; or
(g) action taken by a Department or by
a prescribed authority with respect to the appointment of a person to an office
or position established by or under an enactment, not being an office or
position in the Australian Public Service or an office in the service of a
prescribed authority; or
(h) action
taken by an eligible case manager that is not connected with:
(i) the provision of case
management services (within the meaning of the Employment Services Act 1994)
to persons referred to the eligible case manager under Part 4.3 of that
Act; or
(ii) the performance of
functions conferred on the eligible case manager under that Act.
(3) The reference in paragraph (2)(a) to
action taken by a Minister does not include a reference to action taken by a
delegate of a Minister, and, for the purposes of this subsection, action shall
be deemed to have been taken by such a delegate notwithstanding that the action
is taken in pursuance of a power that is deemed by a provision of an enactment,
when exercised by the delegate, to have been exercised by the Minister.
(3A) For the purposes of the application of this
Act to or in relation to the Ombudsman, action taken by a Department or by a
prescribed authority shall not be regarded as having been taken by a Minister
by reason only that the action was taken by the Department or authority in
relation to action that has been, is proposed to be, or may be, taken by a
Minister personally.
(3B) Paragraph (2)(b) does not prevent the
Ombudsman from investigating action taken by the Integrity Commissioner, or an
Assistant Integrity Commissioner, who happens to be a Justice or Judge of a
court created by the Parliament.
(4) Paragraph (2)(d) does not prevent
the Ombudsman from investigating action taken by an AFP appointee, or by any
other person, with respect to information that:
(a) is given to the AFP appointee; and
(b) raises an AFP conduct issue or AFP
practices issue; and
(c) relates to action taken by another
AFP appointee.
(5) The Ombudsman is not authorised to
investigate action taken under:
(a) a law of Western Australia in its
application in the Territory of Christmas Island by virtue of the Christmas
Island Act 1958; or
(b) a law of Western Australia in its
application in the Territory of Cocos (Keeling) Islands by virtue of the Cocos
(Keeling) Islands Act 1955;
by a person employed by Western Australia.
(6) The reference in subsection (5) to a
person employed by Western Australia includes a reference to:
(a) a person occupying, or acting in,
an office or position under a law of Western Australia; and
(b) a person employed by a body
established by or under a law of Western Australia.
(7) An arrangement referred to in paragraph (1)(c)
may include provision for payment by the other party to the arrangement for the
performance of functions by the Ombudsman in accordance with the arrangement.
6
Discretion not to investigate certain complaints
(1) Where a complaint has been made to the
Ombudsman with respect to action taken by a Department or by a prescribed
authority, the Ombudsman may, in his or her discretion, decide not to
investigate the action or, if he or she has commenced to investigate the
action, decide not to investigate the action further:
(a) if the Ombudsman is satisfied that
the complainant became aware of the action more than 12 months before the
complaint was made to the Ombudsman; or
(b) if, in the opinion of the
Ombudsman:
(i) the complaint is
frivolous or vexatious or was not made in good faith;
(ii) the complainant does
not have a sufficient interest in the subject matter of the complaint; or
(iii) an investigation, or
further investigation, of the action is not warranted having regard to all the
circumstances.
(1A) Where a person who makes a complaint to the
Ombudsman with respect to action taken by a Department or by a prescribed
authority has not complained to the Department or authority with respect to
that action, the Ombudsman may, in his or her discretion, decide not to
investigate the action until the complainant so complains to the Department or
authority.
(1B) Where a person who makes a complaint to the
Ombudsman with respect to action taken by a Department or prescribed authority
has complained to the Department or authority with respect to that action, the
Ombudsman may, in his or her discretion, decide not to investigate the action
unless and until the complainant informs the Ombudsman that no redress has been
granted or that redress has been granted but the redress is not, in the opinion
of the complainant, adequate.
(1C) Where:
(a) a person who has made a complaint
to the Ombudsman with respect to action taken by a Department or by a
prescribed authority and who has complained to the Department or authority with
respect to that action informs the Ombudsman as provided by subsection (1B)
that no redress, or no adequate redress, has been granted by the Department or
authority; and
(b) the Ombudsman is of the opinion:
(i) if no redress has been
granted—that, since the complainant complained to the Department or authority,
a reasonable period has elapsed in which redress could have been granted; or
(ii) if redress has been
granted—that the redress was not reasonably adequate;
the Ombudsman shall, subject to this section, investigate
the action.
(2) Where a complainant has exercised, or
exercises, a right to cause action to which his or her complaint relates to be
reviewed by a court or by a tribunal constituted by or under an enactment, the
Ombudsman shall not investigate, or continue to investigate, as the case may
be, the action unless the Ombudsman is of the opinion that there are special
reasons justifying the investigation of the action or the investigation of the
action further.
(3) Where the Ombudsman is of the opinion
that a complainant has or had a right to cause the action to which the
complaint relates to be reviewed by a court or by a tribunal constituted by or
under an enactment but has not exercised that right, the Ombudsman may decide
not to investigate the action or not to investigate the action further, as the
case may be, if he or she is of the opinion that, in all the circumstances, it
would be reasonable for the complainant to exercise, or would have been
reasonable for the complainant to have exercised, that right.
(4) Where, before the Ombudsman commences, or
after the Ombudsman has commenced, to investigate action taken by a Department
or by a prescribed authority, being action that is the subject matter of a
complaint, the Ombudsman becomes of the opinion that adequate provision is made
under an administrative practice for the review of action of that kind taken by
that Department or prescribed authority, the Ombudsman may decide not to
investigate the action or not to investigate the action further, as the case
may be:
(a) if the action has been, is being
or is to be reviewed under that practice at the request of the complainant; or
(b) if the Ombudsman is satisfied that
the complainant is entitled to cause the action to be reviewed under that
practice and it would be reasonable for the complainant to cause it to be so
reviewed.
(4A) Where, before the Ombudsman commences, or
after the Ombudsman has commenced, to investigate action taken by a Department
or by a prescribed authority, being action that is the subject matter of a
complaint, the Ombudsman becomes of the opinion that:
(a) a complaint with respect to the
action has been, or could have been, made by the complainant to the Privacy
Commissioner under Part V of the Privacy Act 1988; and
(b) the action could be more
conveniently or effectively dealt with by the Privacy Commissioner;
the Ombudsman may decide not to investigate the action, or
not to investigate the action further, as the case may be, and, if the
Ombudsman so decides, the Ombudsman shall:
(c) transfer the complaint to the
Privacy Commissioner;
(d) forthwith give notice in writing
to the complainant stating that the complaint has been so transferred; and
(e) give to the Privacy Commissioner
any information or documents that relate to the complaint and are in the
possession, or under the control, of the Ombudsman.
(4B) A complaint transferred under subsection (4A)
shall be deemed to be a complaint made to the Privacy Commissioner under Part V
of the Privacy Act 1988.
(4C) In subsections (4A) and (4B), Privacy
Commissioner means the Privacy Commissioner within the meaning of the Privacy
Act 1988.
(4D) Where, before the Ombudsman commences, or
after the Ombudsman has commenced, to investigate action taken by a Department
or by a prescribed authority, being action that is the subject matter of a complaint,
the Ombudsman becomes of the opinion that:
(a) a complaint with respect to the
action has been, or could have been, made by the complainant to the ACMA under
Part 26 of the Telecommunications Act 1997; and
(b) the action could be more conveniently
or effectively dealt with by the ACMA;
the Ombudsman may decide not to investigate the action, or
not to investigate the action further, as the case may be, and, if the
Ombudsman so decides, the Ombudsman shall:
(c) transfer the complaint to the ACMA;
(d) forthwith give notice in writing
to the complainant stating that the complaint has been so transferred; and
(e) give to the ACMA any information
or documents that relate to the complaint and are in the possession, or under
the control, of the Ombudsman.
(4E) A complaint transferred under subsection (4D)
shall be taken to be a complaint made to the ACMA under Part 26 of the
Telecommunications Act 1997.
(4G) If, before the Ombudsman begins, or after
the Ombudsman has begun, to investigate action taken by a Department or by a
prescribed authority, being action that is the subject matter of a complaint,
the Ombudsman forms the opinion that:
(a) a complaint with respect to the
action has been, or could have been, made by the complainant to ESRA under Part 4.7
of the Employment Services Act 1994; and
(b) the
action could be more conveniently or effectively dealt with by ESRA;
the Ombudsman may decide not to investigate the action, or
not to investigate the action further, as the case may be, and, if the
Ombudsman so decides, the Ombudsman must:
(c) transfer the complaint to ESRA;
and
(d) forthwith give written notice to
the complainant stating that the complaint has been so transferred; and
(e) give to ESRA any information or
documents that relate to the complaint and are in the possession, or under the
control, of the Ombudsman.
(4H) A complaint transferred under subsection (4G)
is taken to be a complaint made to ESRA under Part 4.7 of the Employment
Services Act 1994.
(5) Where a complaint is made to the
Ombudsman by a complainant at the request of another person or of a body of
persons, this section applies as if references to the complainant were
references to the person or the body of persons at whose request the complaint
is made.
(6) If the Ombudsman forms the opinion:
(a) that a complaint relates to action
of a prescribed authority that is a national broadcasting service for the
purposes of the Broadcasting Services Act 1992; and
(b) that the complaint could have been
made to the Australian Communications and Media Authority under Part 11 of
the Broadcasting Services Act 1992 and could be more conveniently or
effectively dealt with by that Authority;
the Ombudsman may decide not to investigate the action, or
not to investigate the action further, as the case may be, and to transfer the
complaint to the Australian Communications and Media Authority.
(7) If the Ombudsman makes a decision under subsection (6),
the Ombudsman must:
(a) transfer the complaint to the
Authority as soon as is reasonably practicable; and
(b) give the Authority any information
or documents relating to the complaint that are in the possession, or under the
control, of the Ombudsman; and
(c) as soon as is reasonably
practicable, give the complainant written notice that the complaint has been
transferred to the Authority.
(8) A complaint transferred under subsection (7)
is to be taken to be a complaint made under Part 11 of the Broadcasting
Services Act 1992.
(9) If the
Ombudsman forms the opinion:
(a) that a complaint could have been
made under the Public Service Act 1999; and
(b) that the complaint could be more
conveniently or effectively dealt with by the Public Service Commissioner;
the Ombudsman may decide not to investigate the complaint,
or not to investigate the complaint further, as the case may be, and to
transfer the complaint to the Public Service Commissioner.
(10) If the Ombudsman makes a decision under subsection (9),
the Ombudsman must:
(a) transfer the complaint to the
Public Service Commissioner as soon as is reasonably practicable; and
(b) give the Public Service
Commissioner any information or documents relating to the complaint that are in
the possession, or under the control, of the Ombudsman; and
(c) as soon as is reasonably
practicable, give the complainant written notice that the complaint has been
transferred to the Public Service Commissioner.
(12) If the Ombudsman forms the opinion that
action in respect of which a complaint has been made relates to a commercial
activity of a Department or prescribed authority, the Ombudsman may decide not
to investigate the complaint, or to cease investigating the complaint, as the
case may be.
(13) If the Ombudsman forms the opinion:
(a) that a complaint relates to action
taken by a Department or a prescribed authority; and
(b) that the complaint could be more
conveniently or effectively dealt with by the industry ombudsman for a
particular industry;
the Ombudsman may decide not to investigate the action, or
not to investigate the action further, as the case may be, and to transfer the
complaint to that industry ombudsman.
(14) If the
Ombudsman makes a decision under subsection (13), the Ombudsman must:
(a) transfer the complaint to the
industry ombudsman as soon as is reasonably practicable; and
(b) give the industry ombudsman such
information or documents relating to the complaint that are in the possession,
or under the control, of the Ombudsman as the Ombudsman believes are reasonably
necessary to enable the industry ombudsman to deal effectively with the
complaint; and
(c) as soon as is reasonably
practicable, give the complainant written notice of the transfer of the
complaint.
(15) For the purposes of subsection (13),
the industry ombudsman for a particular industry is the person holding, or acting
in, the office or appointment declared by the regulations to be the office or
appointment the holder of which is the ombudsman for that industry.
(16) If the Ombudsman forms the opinion:
(a) that a complaint involves an
allegation, or information, that raises a corruption issue (other than a
significant corruption issue); and
(b) that the allegation or information
could have been referred to the Integrity Commissioner under Part 4 of the
Law Enforcement Integrity Commissioner Act 2006 and could be more
conveniently or effectively dealt with by the Integrity Commissioner;
the Ombudsman may decide not to investigate the complaint,
or not to investigate the complaint further, as the case may be, and to refer
the allegation or information to the Integrity Commissioner.
(17) If the Ombudsman forms the opinion:
(a) that a complaint involves an
allegation, or information, that raises a significant corruption issue; and
(b) that the allegation or information
could have been referred to the Integrity Commissioner under Part 4 of the
Law Enforcement Integrity Commissioner Act 2006 and could be more
conveniently or effectively dealt with by the Integrity Commissioner;
the Ombudsman must not investigate the complaint, or must
not investigate the complaint further, as the case may be, and must refer the
allegation or information to the Integrity Commissioner.
(18) If:
(a) the Ombudsman makes a decision
under subsection (16); or
(b) subsection (17) applies;
the Ombudsman must:
(c) refer the allegation, or information,
that raises the corruption issue or significant corruption issue to the
Integrity Commissioner as soon as is reasonably practicable; and
(d) give the Integrity Commissioner
any information or documents relating to the complaint that are in the possession,
or under the control, of the Ombudsman; and
(e) as soon as is reasonably
practicable, give the complainant written notice that the complaint has been
transferred to the Integrity Commissioner.
(19) In subsections (16) to (18):
corruption issue has the same meaning as in
the Law Enforcement Integrity Commissioner Act 2006.
Integrity Commissioner has the same meaning
as in the Law Enforcement Integrity Commissioner Act 2006.
significant corruption issue has the same
meaning as in the Law Enforcement Integrity Commissioner Act 2006.
(20) If the Ombudsman forms the opinion:
(a) that a complaint includes
information about an AFP conduct issue or an AFP practices issue; and
(b) that the information could have
been given under section 40SA of the Australian Federal Police Act 1979
and the issue could be more conveniently or effectively dealt with under
Part V of that Act;
the Ombudsman may decide not to investigate the complaint,
or not to investigate the complaint further, as the case may be, and to give
the information to the AFP Commissioner under that section of that Act.
(21) If the Ombudsman makes a decision under subsection (20),
the Ombudsman must:
(a) give the information to the AFP
Commissioner under section 40SA of the Australian Federal Police Act
1979 as soon as is reasonably practicable; and
(b) give the AFP Commissioner any
information or documents relating to the complaint that are in the possession,
or under the control, of the Ombudsman; and
(c) as soon as is reasonably
practicable, give the complainant written notice that the complaint has been
transferred to the AFP Commissioner to be dealt with under that Act.
6A
Transfer of complaints about ACC
(1) If:
(a) the Ombudsman forms the opinion
that:
(i) a complaint in respect
of action taken by the ACC could have been made to another authority
established under a law of the Commonwealth, a State or a Territory; and
(ii) the complaint could be
more conveniently or effectively dealt with by the other authority; and
(b) the other authority can deal with
the complaint if the Ombudsman transfers the complaint to the other authority;
the Ombudsman may decide not to investigate the complaint,
or not to investigate the complaint further, as the case may be, and to
transfer the complaint to the other authority.
(2) If the Ombudsman decides to transfer the
complaint, the Ombudsman must:
(a) do so as soon as is reasonably
practicable; and
(b) subject to section 35B, give
the other authority any information or documents relating to the complaint that
are in the possession, or under the control, of the Ombudsman; and
(c) as soon as is reasonably
practicable, give the complainant written notice that the complaint has been
transferred to the other authority.
6B
Transfer of complaints about Integrity Commissioner
(1) If:
(a) the Ombudsman forms the opinion
that:
(i) a complaint in respect
of action taken by the Integrity Commissioner could have been made to another
authority established under a law of the Commonwealth, a State or a Territory;
and
(ii) the complaint could be
more conveniently or effectively dealt with by the other authority; and
(b) the other authority can deal with
the complaint if the Ombudsman transfers the complaint to the other authority;
the Ombudsman may decide not to investigate the complaint,
or not to investigate the complaint further, as the case may be, and to
transfer the complaint to the other authority.
(2) If the Ombudsman decides to transfer the
complaint, the Ombudsman must:
(a) do so as soon as is reasonably
practicable; and
(b) subject to section 35C, give
the other authority any information or documents relating to the complaint that
are in the possession, or under the control, of the Ombudsman; and
(c) as soon as is reasonably
practicable, give the complainant written notice that the complaint has been
transferred to the other authority.
7
Complaints
(1) Subject to subsection (2), a
complaint under this Act may be made to the Ombudsman orally or in writing.
(2) Where a complaint is made orally to the
Ombudsman, the Ombudsman may reduce the complaint to writing or at any time
require the complainant to reduce the complaint to writing and, where the
Ombudsman makes such a requirement of a complainant, the Ombudsman may decline
to investigate the complaint, or to investigate the complaint further, until
the complainant reduces the complaint to writing.
(3) A person who is detained in custody is
entitled:
(a) upon making a request to the
person in whose custody he or she is detained or to any other person performing
duties in connection with his or her detention:
(i) to be provided with
facilities for preparing a complaint in writing under this Act, for furnishing
in writing to the Ombudsman, after the complaint has been made, any other
relevant information and for enclosing the complaint or the other information
(if any) in a sealed envelope; and
(ii) to have sent to the
Ombudsman, without undue delay, a sealed envelope delivered by him or her to
any such person and addressed to the Ombudsman; and
(b) to have delivered to him or her,
without undue delay, any sealed envelope, addressed to him or her and sent by
the Ombudsman, that comes into the possession or under the control of the
person in whose custody he or she is detained or of any other person performing
duties in connection with his or her detention.
(4) Where a sealed envelope addressed to the
Ombudsman is delivered by a person detained in custody to a person referred to
in subsection (3) for sending to the Ombudsman, or a sealed envelope addressed
to a person so detained and sent by the Ombudsman comes into the possession or
under the control of a person referred to in that subsection, neither the
person in whose custody the first‑mentioned person is detained nor any
other person performing duties in connection with his or her detention is
entitled to open the envelope or to inspect any document enclosed in the
envelope.
(5) For the purposes of subsections (3)
and (4), the Ombudsman may make arrangements with the appropriate authority of
a State or a Territory for the identification and delivery of sealed envelopes
sent by the Ombudsman to persons detained in custody in that State or
Territory.
7A
Preliminary inquiries
Ombudsman may make preliminary inquiries
(1) Where a complaint has been made to the
Ombudsman with respect to action taken by a Department or by a prescribed
authority or it appears to the Ombudsman that the Ombudsman may, under
paragraph 5(1)(b), investigate action so taken, the Ombudsman may, for the
purpose of:
(a) determining whether or not the
Ombudsman is authorized to investigate the action; or
(b) if the Ombudsman is authorized to
investigate the action—determining whether or not the Ombudsman may, in his or
her discretion, decide not to investigate the action;
make inquiries of the principal officer of the Department
or prescribed authority or, if an arrangement with the principal officer of the
Department or authority is in force under subsection (2), of such officers
as are referred to in the arrangement.
Disclosure of information
(1A) Subsections (1B), (1C), (1D) and (1E)
apply if:
(a) the Ombudsman requests the
principal officer, or (if applicable) an officer referred to in the
arrangement, to give information (including an answer to a question) to the
Ombudsman or to produce a document or other record to the Ombudsman; or
(b) the principal officer, or (if
applicable) an officer referred to in the arrangement, reasonably believes that
information or a document or other record would assist the Ombudsman to make a
determination under subsection (1).
(1B) If the officer:
(a) gives the information to the
Ombudsman or produces the document or record to the Ombudsman; and
(b) by
doing so:
(i) contravenes any other
enactment; or
(ii) might tend to
incriminate the officer or make the officer liable to a penalty; or
(iii) discloses a legal
advice given to a Minister, a Department or a prescribed authority; or
(iv) discloses a
communication between an officer of a Department or of a prescribed authority
and another person or body, being a communication protected against disclosure
by legal professional privilege; or
(v) otherwise acts contrary
to the public interest;
the information or the production of the document or
record is not admissible in evidence against the officer in proceedings other
than proceedings for an offence against section 137.1, 137.2 or 149.1 of
the Criminal Code that relates to this Act.
(1C) The officer is not liable to any penalty
under the provisions of any other enactment by reason of his or her giving the
information to the Ombudsman or producing the document or record to the
Ombudsman.
(1D) For the purposes of the Privacy Act 1988,
the giving of the information to the Ombudsman or the production of the
document or record to the Ombudsman is taken to be authorised by law.
(1E) Subsection (1B) does not otherwise
affect a claim of legal professional privilege that anyone may make in relation
to the information, document or record.
Arrangements with Departments and prescribed
authorities
(2) The Ombudsman may from time to time make
with the principal officer of a Department or of a prescribed authority an
arrangement with respect to the officers of whom all inquiries, or inquiries
included in a class or classes of inquiries specified in the arrangement, are
to be made by the Ombudsman in pursuance of subsection (1) with respect to
action that has been or is taken by the Department or authority.
8
Investigations
Ombudsman must inform of investigation
(1) The Ombudsman shall, before commencing an
investigation under this Act of action taken by a Department or by a prescribed
authority, inform the principal officer of the Department or of the authority
that the action is to be investigated.
(1A) The Ombudsman may from time to time make
with the principal officer of a Department or of a prescribed authority an
arrangement with respect to the manner in which, and the period within which,
the Ombudsman is to inform that principal officer that he or she proposes to
investigate action taken by the Department or authority, being action included
in a class or classes of actions specified in the arrangement.
Investigations to be in private
(2) An investigation under this Act shall be
conducted in private and, subject to this Act, in such manner as the Ombudsman
thinks fit.
Disclosure of information
(2A) Subsections (2B), (2C), (2D) and (2E)
apply if:
(a) either:
(i) for the purposes of an
investigation under this Act (whether or not the investigation has been
completed), the Ombudsman requests a person to give information (including an
answer to a question) to the Ombudsman or to produce a document or other record
to the Ombudsman; or
(ii) a person reasonably
believes that information or a document or other record is relevant to an
investigation under this Act (whether or not the investigation has been
completed); and
(b) any of the following apply:
(i) the person obtained
the information, document or record in the course of the person’s duties as the
principal officer of a Department or prescribed authority, and the person is
still the principal officer of the Department or prescribed authority;
(ii) the person obtained
the information, document or record in the course of the person’s duties as the
principal officer of a Department or prescribed authority, the person is no
longer the principal officer of the Department or prescribed authority, and the
principal officer of the Department or prescribed authority has authorised the
person to give the information to the Ombudsman or to produce the document or
other record to the Ombudsman;
(iii) the person obtained
the information, document or record in the course of the person’s duties as an
officer (other than as the principal officer) of a Department or prescribed
authority, and the principal officer of the Department or prescribed authority
has authorised the officer to give the information to the Ombudsman or to
produce the document or other record to the Ombudsman;
(iv) the person obtained the
information, document or record lawfully but not in the course of the person’s
duties as an officer (including as the principal officer) of a Department or
prescribed authority.
(2B) If the person:
(a) gives the information to the
Ombudsman or produces the document or record to the Ombudsman; and
(b) by doing so:
(i) contravenes any other
enactment; or
(ii) might tend to
incriminate the person or make the person liable to a penalty; or
(iii) discloses a legal
advice given to a Minister, a Department or a prescribed authority; or
(iv) discloses a communication
between an officer of a Department or of a prescribed authority and another
person or body, being a communication protected against disclosure by legal
professional privilege; or
(v) otherwise acts contrary
to the public interest;
the information or the production of the document or
record is not admissible in evidence against the person in proceedings other
than proceedings for an offence against section 137.1, 137.2 or 149.1 of
the Criminal Code that relates to this Act.
(2C) The person is not liable to any penalty
under the provisions of any other enactment by reason of his or her giving the
information to the Ombudsman or producing the document or record to the
Ombudsman.
(2D) For the purposes of the Privacy Act 1988,
the giving of the information to the Ombudsman or the production of the
document or record to the Ombudsman is taken to be authorised by law.
(2E) Subsection (2B) does not otherwise
affect a claim of legal professional privilege that anyone may make in relation
to the information, document or record.
Ombudsman may obtain information
(3) Subject to this Act, the Ombudsman may,
for the purposes of this Act, obtain information from such persons, and make
such inquiries, as he or she thinks fit.
Rights to appear
(4) Subject to subsection (5), it is not
necessary for the complainant or any other person to be afforded an opportunity
to appear before the Ombudsman or any other person in connexion with an
investigation by the Ombudsman under this Act.
(5) The Ombudsman shall not make a report in
respect of an investigation under this Act in which he or she sets out opinions
that are, either expressly or impliedly, critical of a Department, prescribed
authority or person unless, before completing the investigation, he or she has:
(a) if the opinions relate to a
Department or prescribed authority—afforded the principal officer of the
Department or authority and the officer principally concerned in the action to
which the investigation relates opportunities to appear before him or her, or
before an authorized person, and to make such submissions, either orally or in
writing, in relation to that action as they think fit; and
(b) if the opinions relate to a
person—afforded that person an opportunity to appear before him or her, or
before an authorized person, and to make such submissions, either orally or in
writing, in relation to the action to which the investigation relates as he or
she thinks fit.
(6) Where the Ombudsman affords the principal
officer of a Department or of a prescribed authority an opportunity to appear
before him or her, or before an authorized person, under subsection (5),
the principal officer may appear before the Ombudsman or before the authorized
person in person or a person authorized by the principal officer may appear before
the Ombudsman or before the authorized person on behalf of the principal
officer.
(7) Where the Ombudsman affords a person
other than the principal officer of a Department or of a prescribed authority
an opportunity to appear before him or her, or before an authorized person,
under subsection (5), the person may, with the approval of the Ombudsman
or of the authorized person, as the case may be, be represented by another
person.
(7A) Where, in relation to an investigation
under this Act, the Ombudsman proposes to afford a person an opportunity to
appear before him or her or before an authorized person and to make submissions
under subsection (5), or proposes to make a requirement of a person under
section 9:
(a) if a complaint was made orally
with respect to the action and the complaint has not been reduced to
writing—the complaint shall be reduced to writing accordingly; and
(b) the Ombudsman shall, if he or she
has not previously informed the responsible Minister that the action is being
investigated, inform that Minister accordingly.
Ombudsman may discuss investigation with Ministers
(8) The Ombudsman may, either before or after
the completion of an investigation under this Act, discuss any matter relevant
to the investigation with:
(a) the responsible Minister; or
(b) any other Minister concerned with
the matter.
(9) On the request of the responsible
Minister, the Ombudsman shall consult that Minister before he or she forms a
final opinion on any of the matters referred to in subsection 15(1) or (2) that
are relevant to the action under investigation.
Breaches of duty etc.
(10) Where the Ombudsman becomes of the
opinion, either before or after completing an investigation under this Act,
that there is evidence that a person, being an officer of a Department or of a
prescribed authority, has been guilty of a breach of duty or of misconduct and
that the evidence is, in all the circumstances, of sufficient force to justify
his or her doing so, the Ombudsman shall bring the evidence to the notice of:
(a) if the person is the principal
officer of the Department—the Minister administering the Department;
(b) if the person is an officer of a
Department but not the principal officer of that Department—the principal
officer of that Department;
(c) if the person is the principal
officer of a prescribed authority—the responsible Minister in respect of the
action under investigation; or
(d) if the person is an officer of a
prescribed authority but not the principal officer of that authority—the
principal officer of that authority.
(11) If:
(a) a person is, or is an employee of,
a Commonwealth service provider of a Department or prescribed authority under a
contract; and
(b) in the opinion of the Ombudsman,
there is evidence that the person has engaged in conduct that:
(i) would, if the person
were an officer of the Department or prescribed authority, amount to a breach
of duty or to misconduct; or
(ii) should be brought to
the attention of the principal officer of the Department or prescribed authority;
and
(c) in the opinion of the Ombudsman,
the evidence is, in all the circumstances, of sufficient force to justify the
Ombudsman doing so;
the Ombudsman must bring the evidence to the notice of the
principal officer of the Department or prescribed authority.
Arrangements for having police officers assist
Ombudsman in relation to investigation
(12) Whenever it becomes necessary or desirable
for the Ombudsman to use persons with police training in connection with his or
her investigation of a complaint about an AFP conduct issue or AFP practices
issue, the Ombudsman may, and must in so far as it is practicable to do so,
use, in connection with that investigation:
(a) an AFP appointee who is made
available to him or her by the AFP Commissioner for the purposes of the
investigation; or
(b) a member of the police force of a
State whom the police force of the State agrees to make available to the
Ombudsman, for the purposes of the investigation, under arrangements made by
the AFP Commissioner.
8A
Investigations by Commonwealth and State Ombudsmen
(1) The Commonwealth Ombudsman may, if he or
she thinks fit, make an arrangement with the Ombudsman of a State, or the
Ombudsmen of 2 or more States, for and in relation to the investigation by any
one or more of the Ombudsmen of action, being action that relates to a matter
of administration, referred to in any of the following paragraphs:
(a) action taken by a Department or
prescribed authority and action taken by a Department of a State or an
authority of a State;
(b) action taken by an authority or
other agency established jointly or administered jointly by the Commonwealth
and one or more States;
(c) action taken by an authority or
other agency referred to in paragraph (b) and action taken by:
(i) a Department or
prescribed authority; or
(ii) a Department of a
State or an authority of a State.
(1A) The Commonwealth Ombudsman may, if he or
she thinks fit, make an arrangement with the Ombudsman of a State, or the
Ombudsmen of 2 or more States, for and in relation to the investigation, by any
one or more of the Ombudsmen, of action to which subsection (1B), (1C) or
(1D) applies.
(1B) This subsection applies to action that:
(a) gives rise to an AFP conduct issue
or AFP practices issue; and
(b) involves:
(i) an AFP conduct issue
that relates to a member of the police force of a State; or
(ii) action taken by the
police force of a State; or
(iii) action taken by a
Department of a State or by an authority of a State.
(1C) This subsection applies to action taken by
a body if the body:
(a) is established jointly, or
administered jointly, by the Commonwealth and one or more States; and
(b) includes at least one AFP
appointee and a member or members of the police force of a State or the police
forces of 2 or more States.
(1D) This subsection applies to action taken by
a body referred to in subsection (1C) together with action taken by:
(a) by an AFP appointee or by the
Australian Federal Police; or
(b) by a member of the police force of
a State; or
(c) by the police force of a State; or
(d) by a Department of a State or by
an authority of a State.
(2) A reference in subsection (1) or
(1B) to action taken by a Department, prescribed or other authority or an
agency includes a reference to action taken by such a Department, prescribed or
other authority or agency on behalf of another Department, prescribed or other
authority or agency.
(3) An arrangement made in pursuance of subsection (1)
or (1A) may relate to particular action or actions, to a series of related
actions or to actions included in a class or classes of actions.
(4) The Commonwealth Ombudsman may arrange
with the other Ombudsman or Ombudsmen with whom an arrangement is in force
under this section for the variation or revocation of the arrangement.
(5) An arrangement under this section, or the
variation or revocation of such an arrangement, shall be in writing.
(6) The regulations may make provision for
and in relation to the participation by the Ombudsman in the carrying out of an
investigation in pursuance of an arrangement under this section.
(7) Nothing in this section affects the
powers and duties of the Ombudsman under any other provision of this Act.
(8) Subsection (1) or (1A) shall not be
taken to empower the Ombudsman:
(a) to exercise any of the powers of
the Ombudsman of a State except in accordance with subsection 34(7); or
(b) to make an arrangement for the
exercise by the Ombudsman of a State of a power of the Ombudsman except in
accordance with an instrument of delegation referred to in subsection 34(1).
8B
Investigations by other authorities of ACC actions
(1) If an authority established under a law
of the Commonwealth, a State or a Territory has power to investigate action
taken by the ACC, or a member of the staff of the ACC, the Ombudsman may enter
into an arrangement with the authority for such an investigation.
(2) If the Ombudsman enters into such an
arrangement with an authority established under a law of a State or a
Territory, the authority may conduct the investigation to the full extent of
its powers under State or Territory law.
(3) The Ombudsman may arrange with the
authority for the variation or revocation of the arrangement.
(4) The arrangement may relate to particular
action or actions, to a series of related actions or to actions included in a
class of actions.
(5) The arrangement, or the variation or
revocation of the arrangement, must be in writing.
(6) The regulations may make provision for
and in relation to the participation by the Ombudsman in the carrying out of an
investigation in accordance with an arrangement under this section.
(7) Nothing in this section affects the
powers and duties of the Ombudsman under any other provision of this Act.
(8) In this section:
member of the staff of the ACC has the same
meaning as in the Australian Crime Commission Act 2002.
8C
Investigations by other authorities of ACLEI actions
(1) If an authority established under a law
of the Commonwealth, or of a State or Territory, has power to investigate
action taken by the Integrity Commissioner or a staff member of ACLEI, the
Ombudsman may arrange with the head of the authority for the authority to
investigate the action.
(2) If the Ombudsman enters into such an
arrangement, the authority may investigate the action to the full extent of its
powers under any laws of the Commonwealth or of a State or Territory.
(3) The Integrity Commissioner may arrange
with the head of the authority for the variation or revocation of the
arrangement.
(4) The arrangement, or the variation or
revocation of the arrangement, must be in writing.
(5) The regulations may make provision for
and in relation to the participation by the Ombudsman in the carrying out of an
investigation in accordance with an arrangement under this section.
(6) Nothing in this section affects the
powers and duties of the Ombudsman under any other provision of this Act.
(7) In this section:
Integrity Commissioner has the same meaning
as in the Law Enforcement Integrity Commissioner Act 2006.
staff member of ACLEI has the same meaning as
in the Law Enforcement Integrity Commissioner Act 2006.
8D
Investigations by Ombudsman and Australian Federal Police
(1) The Ombudsman may, if he or she thinks
fit, make an arrangement with the AFP Commissioner for:
(a) a category 3 conduct issue; or
(b) an AFP practices issue;
to be dealt with jointly by the Ombudsman and the
Australian Federal Police.
(2) The arrangement may relate to:
(a) a particular category 3 conduct
issue or issues; or
(b) a series of related category 3 conduct
issues; or
(c) a particular AFP practices issue
or issues; or
(d) a series of related AFP practices
issues.
(3) The Ombudsman may arrange with the AFP
Commissioner for the variation or revocation of the arrangement.
(4) The arrangement, or the variation or
revocation of the arrangement, must be in writing.
(5) Nothing in this section affects the
powers or duties of the Ombudsman under any other provision of this Act.
(6) In this section:
category 3 conduct issue has the same meaning
as in the Australian Federal Police Act 1979.
9
Power to obtain information and documents
(1) Where the Ombudsman has reason to believe
that a person is capable of furnishing information or producing documents or
other records relevant to an investigation under this Act, the Ombudsman may,
by notice in writing served on the person, require that person, at such place,
and within such period or on such date and at such time, as are specified in
the notice:
(a) to furnish to the Ombudsman, by
writing signed by that person or, in the case of a body corporate, by an
officer of the body corporate, any such information; or
(b) to produce to the Ombudsman such
documents or other records as are specified in the notice.
(1AA) If the Ombudsman has reason to believe that a
person who is:
(aa) an officer of a Department or
prescribed authority; or
(ab) a Commonwealth service provider of
a Department or prescribed authority under a contract; or
(ac) an employee of Commonwealth
service provider of a Department or prescribed authority under a contract;
is capable of furnishing information or producing
documents or other records relevant to an investigation under this Act but the
Ombudsman does not know the identity of the person, the Ombudsman may, by
notice in writing served on the principal officer of the Department or
authority, require the principal officer or a person nominated by the principal
officer, at such place, and within such period or on such date and at such
time, as are specified in the notice:
(a) to attend before a person
specified in the notice to answer questions relevant to the investigation; or
(b) to produce to a person specified
in the notice such documents or other records as are so specified.
(1A) Where documents or other records are
produced to the Ombudsman in accordance with a requirement under subsection (1)
or (1AA) or an order under subsection 11A(2), the Ombudsman:
(a) may take possession of, and may
make copies of, or take extracts from, the documents or other records;
(b) may retain possession of the
documents or other records for such period as is necessary for the purposes of
the investigation to which the documents or other records relate; and
(c) during that period shall permit a
person who would be entitled to inspect any one or more of the documents or
other records if they were not in the possession of the Ombudsman to inspect at
all reasonable times such of the documents or other records as that person
would be so entitled to inspect.
(2) Where the Ombudsman has reason to believe
that a person is able to give information relevant to an investigation under
this Act, the Ombudsman may, by notice in writing served on the person, require
the person to attend before a person specified in the notice, on such date and
at such time and place as are specified in the notice, to answer questions
relevant to the investigation.
(3) Where the Attorney‑General
furnishes to the Ombudsman a certificate certifying that the disclosure to the
Ombudsman of information concerning a specified matter (including the
furnishing of information in answer to a question) or the disclosure to the
Ombudsman of the contents of any documents or records would be contrary to the
public interest:
(a) by reason that it would prejudice
the security, defence or international relations of the Commonwealth; or
(b) by reason that it would involve
the disclosure of communications between a Minister and a Minister of a State,
being a disclosure that would prejudice relations between the Commonwealth
Government and the Government of a State; or
(c) by reason that it would involve
the disclosure of deliberations or decisions of the Cabinet or of a Committee
of the Cabinet; or
(d) by reason that it would involve
the disclosure of deliberations or advice of the Executive Council; or
(e) if the information, documents or
records are, or were, in the possession or under the control of the ACC or the
Board of the ACC—by reason that it would:
(i) endanger the life of a
person; or
(ii) create a risk of
serious injury to a person; or
(f) if the information, documents or
records are, or were, in the possession or under the control of the Integrity
Commissioner (within the meaning of the Law Enforcement Integrity
Commissioner Act 2006)—by reason that it would:
(i) endanger the life of a
person; or
(ii) create a risk of
serious injury to a person;
the Ombudsman is not entitled to require a person to
furnish any information concerning the matter, to answer questions concerning
the matter or to produce those documents or records to the Ombudsman.
(4) Notwithstanding the provisions of any
enactment, a person is not excused from furnishing any information, producing a
document or other record or answering a question when required to do so under
this Act on the ground that the furnishing of the information, the production
of the document or record or the answer to the question:
(a) would contravene the provisions of
any other enactment (whether enacted before or after the commencement of the Prime
Minister and Cabinet Legislation Amendment Act 1991); or
(aa) might tend to incriminate the
person or make the person liable to a penalty; or
(ab) would disclose one of the
following:
(i) a legal advice given
to a Minister, a Department or a prescribed authority;
(ii) a communication
between an officer of a Department or of a prescribed authority and another
person or body, being a communication protected against disclosure by legal
professional privilege; or
(b) would be otherwise contrary to the
public interest;
but the information, the production of the document or
record or the answer to the question is not admissible in evidence against the
person in proceedings other than:
(c) an application under subsection
11A(2); or
(d) proceedings for an offence against
section 36 of this Act or an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this Act.
(5) A person is not liable to any penalty
under the provisions of any other enactment by reason of his or her furnishing
information, producing a document or other record or answering a question when
required to do so under this Act.
(5A) The fact that a person is not excused under
subsection (4) from furnishing information, producing a document or other
record or answering a question does not otherwise affect a claim of legal
professional privilege that anyone may make in relation to that information,
document or other record or answer.
(6) The reference in subsection (1) to
an officer, in relation to a body corporate, being a body corporate that is not
a prescribed authority, includes a reference to a director, secretary,
executive officer or employee of the body corporate.
(7) In this
section:
State includes
the Australian Capital Territory and the Northern Territory.
10
Unreasonable delay in exercising power
(1) Where:
(a) under an enactment, a person has a
power to do an act or thing in the exercise of a discretion or otherwise;
(b) there is no enactment that
prescribes a period within which the person is required to do or refuse to do
the act or thing;
(c) an enactment provides that
application may be made to a prescribed tribunal for the review of decisions
made in the exercise of that power; and
(d) a complaint has been made to the
Ombudsman concerning a failure to do the act or thing in the exercise of that
power;
the Ombudsman, after having investigated the complaint,
may, if he or she is of the opinion that there has been unreasonable delay in
deciding whether to do the act or thing, grant to the complainant a certificate
certifying, that, in the opinion of the Ombudsman, there has been unreasonable
delay in deciding whether to do the act or thing and, if the Ombudsman does so,
the person required or permitted to exercise the power, shall, for the purpose
of enabling application to be made under the enactment referred to in paragraph (c)
to the prescribed tribunal concerned, be deemed to have made, on the date on
which the certificate is granted, a decision, in the exercise of that power,
not to do the act or thing.
(1A) Where:
(a) under an enactment, a person has a
power to do an act or thing in the exercise of a discretion or otherwise;
(b) there is no enactment that
prescribes a period within which the person is required to do or refuse to do
the act or thing;
(c) an enactment provides that
application may be made to a person other than a prescribed tribunal for the
review of decisions made in the exercise of that power and an enactment also
provides that application may be made to a prescribed tribunal for the review
of decisions made by the last‑mentioned person upon an application first
referred to in this paragraph; and
(d) a complaint has been made to the
Ombudsman concerning a failure to do the act or thing in the exercise of that
power;
the Ombudsman, after having investigated the complaint,
may, if he or she is of the opinion that there has been unreasonable delay in
deciding whether to do the act or thing, grant to the complainant a certificate
certifying that, in the opinion of the Ombudsman, there has been unreasonable
delay in deciding whether to do the act or thing and, if the Ombudsman does so,
the person required or permitted to exercise the power, shall, for the purpose
of enabling application to be made to the person other than a prescribed
tribunal referred to in paragraph (c) under the enactment first referred
to in that paragraph, be deemed to have made, on the date on which the
certificate is granted, a decision, in the exercise of that power, not to do
the act or thing.
(2) Where a board, committee or other
unincorporated body constituted by 2 or more persons is empowered by an
enactment to make decisions, subsections (1) and (1A) apply as if the
board, committee or other body were a person empowered to make those decisions.
(3) In this section, prescribed
tribunal means:
(a) the Administrative Appeals
Tribunal; or
(b) any other tribunal that is
declared by the regulations to be a prescribed tribunal for the purposes of
this section.
10A
Ombudsman may refer questions to the AAT
(1) Where the Ombudsman is investigating the
taking of action by a Department or by a prescribed authority under a power,
whether conferred by an enactment or otherwise, the Ombudsman may refer a
specified question about the taking of the action, or the exercise of the
power, to the Administrative Appeals Tribunal if he or she thinks it
appropriate.
(2) If the Ombudsman refers a question to the
Tribunal, the Ombudsman must, as soon as practicable, give written notice of
the referral to the principal officer.
(3) The Tribunal may give an advisory opinion
on the question.
11
Ombudsman may recommend that the principal officer refer questions to the AAT
(1) Where the Ombudsman is investigating the
taking of action by a Department or by a prescribed authority under a power,
whether conferred by an enactment or otherwise, the Ombudsman may recommend, in
writing, to the principal officer of the Department or authority that the
principal officer refer a specified question about the taking of the action, or
the exercise of the power, to the Administrative Appeals Tribunal for an
advisory opinion.
(2) The Ombudsman may:
(a) give the recommendation to the
principal officer at any time before the Ombudsman completes the investigation;
or
(b) include the recommendation in his
or her report to the Department or prescribed authority under section 15.
(3) If the Ombudsman makes a recommendation,
the principal officer must refer the question to the Tribunal within 30 days,
or such longer period as is agreed to by the Ombudsman and the principal
officer, after the day on which the principal officer received the
recommendation.
(4) The Tribunal may give an advisory opinion
on the question.
(5) This section does not limit the
Ombudsman’s power under section 10A.
11A
Powers of Federal Court of Australia
(1) Where a question with respect to the
exercise or proposed exercise of a power, or the performance or proposed
performance of a function, of the Ombudsman arose before, or arises after, the
commencement of this section between the Ombudsman and the principal officer of
any Department or prescribed authority that is affected by that exercise or
performance, or that would be affected by the exercise or performance of the
power or function proposed to be exercised or performed, as the case may be,
the Ombudsman or the principal officer of the Department or of the prescribed
authority may, subject to subsections (4) and (5), make an application to
the Federal Court of Australia for a determination of the question.
(2) Where a person fails to comply with a
requirement made by the Ombudsman by notice under section 9 to furnish
information, to produce documents or other records or to attend before the
Ombudsman to answer questions in relation to an investigation under this Act,
the Ombudsman may make an application to the Federal Court of Australia for an
order directing that person to furnish the information, or to produce the
documents or other records, at such place, and within such period or on such
date and at such time, as are specified in the order, or to attend before the Ombudsman
to answer questions at such place, and on such date and at such time, as are
specified in the order, as the case may be.
(3) The Federal Court of Australia has
jurisdiction with respect to matters arising under this section in respect of
which applications are made to the Court.
(4) The Ombudsman shall not make an
application to the Federal Court of Australia under this section unless he or
she has informed the Minister in writing of the reasons for the proposed
application.
(5) The principal officer of a Department or
of a prescribed authority shall not make an application to the Federal Court of
Australia under subsection (1) unless he or she has informed the
responsible Minister in writing of the reasons for the proposed application.
12
Complainant and Department etc. to be informed
(1) Where the Ombudsman does not, for any
reason, investigate, or continue to investigate, action taken by a Department
or by a prescribed authority in respect of which a complaint has been made to
him or her, the Ombudsman shall, as soon as practicable and in such manner as
the Ombudsman thinks fit, inform the complainant and, except where an
arrangement with the Department or authority is in force under subsection (2)
relating to a class of actions in which that action is included, the Department
or authority, of his or her decision and of the reasons for his or her
decision.
(2) The Ombudsman may from time to time make
with a Department or with a prescribed authority an arrangement in relation to
actions in respect of which complaints have been or are made to the Ombudsman,
being actions taken by the Department or authority that are included in a class
or classes of actions specified in the arrangement:
(a) providing for the manner in which,
and the period within which, the Ombudsman is to inform the Department or
authority of his or her decision not to investigate, or to continue to
investigate, such actions and of the reasons for his or her decision; or
(b) providing that the Ombudsman is
not required to inform the Department or authority of his or her decision not
to investigate, or to continue to investigate, such actions and of the reasons
for his or her decision.
(3) Where the Ombudsman completes an
investigation of action taken by a Department or by a prescribed authority in
respect of which a complaint has been made to him or her, the Ombudsman shall,
in such manner and at such times as he or she thinks fit, furnish to the
complainant and to the Department or authority particulars of the
investigation.
(4) The Ombudsman may, if he or she thinks
fit, furnish comments or suggestions with respect to any matter relating to or
arising out of an investigation by him or her to any Department, body or person
other than a Department, body or person to which or to whom he or she has
furnished a report under section 15 relating to that matter or to matters
that include that matter.
(5) Where the Ombudsman furnishes a report to
a Department or prescribed authority under section 15 containing
recommendations with respect to action in respect of which a complaint has been
made:
(a) the Ombudsman shall, if action
that is, in the opinion of the Ombudsman, adequate and appropriate in the
circumstances is not taken with respect to the recommendations within a
reasonable time after the recommendations are furnished to the Department or
authority—furnish to the complainant a copy of the recommendations, together
with such comments (if any) as he or she thinks fit; or
(b) in any other case—the Ombudsman
may furnish to the complainant a copy of the recommendations, together with
such comments (if any) as he or she thinks fit.
13
Power to examine witnesses
(1) The Ombudsman may administer an oath or
affirmation to a person required to attend before him or her in pursuance of section 9
and may examine the person on oath or affirmation.
(2) A person before whom another person (in
this subsection called the respondent) attends in accordance with
a notice under subsection 9(2) may:
(a) administer an oath or affirmation
to the respondent; and
(b) examine the respondent on oath or
affirmation.
14
Power to enter premises
(1) For the purposes of an investigation
under this Act, an authorised person may, at any reasonable time of the day:
(a) enter a place that is:
(i) occupied by a
Department or prescribed authority; or
(ii) occupied by a person
who is a Commonwealth service provider of a Department or prescribed authority
under a contract, if the person occupies the place predominantly for the
purposes of the contract; and
(b) carry on the investigation at the
place.
(2) Subsection (1) does not authorize a
person to enter, or carry on an investigation at:
(a) a place referred to in paragraph
80(c) of the Crimes Act 1914;
(b) a place that is a prohibited place
for the purposes of the Defence (Special Undertakings) Act 1952 by
virtue of section 7 of that Act; or
(c) an area of land or water or an
area of land and water that is declared under section 14 of the Defence
(Special Undertakings) Act 1952 to be a restricted area for the purposes of
that Act;
unless the Minister administering that Act, or another
Minister acting for and on behalf of that Minister, has approved the person
entering the place or area and he or she complies with any conditions imposed
by the Minister giving the approval in relation to his or her entering that
place or area and the manner in which his or her investigation is to be
conducted at that place or area.
(3) Where the Attorney‑General is
satisfied that the carrying on of an investigation at a place might prejudice
the security or defence of the Commonwealth, the Attorney‑General may, by
notice in writing delivered to the Ombudsman, declare the place to be a place
to which this subsection applies and, while the declaration is in force, subsection (1)
does not authorize a person to enter, or carry on an investigation at, the
place unless a Minister specified in the declaration, or another Minister
acting for and on behalf of that Minister, has approved the person entering the
place and he or she complies with any conditions imposed by the Minister giving
the approval in relation to his or her entering the place and the manner in
which his or her investigation is to be conducted at that place.
(4) For the purposes of an investigation
under this Act, an authorized person is entitled to inspect any documents
relevant to the investigation kept at premises entered by him or her under this
section (including premises occupied by a Commonwealth service provider), other
than documents in respect of which the Attorney‑General has furnished a
certificate under subsection 9(3), at a reasonable time of the day arranged
with the principal officer of the Department or prescribed authority concerned.
(5) Subsection (4) shall not be taken to
restrict the operation of section 9.
(6) A reference in this section to an
authorized person includes a reference to the Ombudsman and a Deputy Ombudsman.
Division 2—Reports
15
Reports by Ombudsman
(1) Where, after an investigation under this
Act into action taken by a Department or prescribed authority has been
completed, the Ombudsman is of the opinion:
(a) that the action:
(i) appears to have been
contrary to law;
(ii) was unreasonable,
unjust, oppressive or improperly discriminatory;
(iii) was in accordance with
a rule of law, a provision of an enactment or a practice but the rule,
provision or practice is or may be unreasonable, unjust, oppressive or
improperly discriminatory;
(iv) was based either wholly
or partly on a mistake of law or of fact; or
(v) was otherwise, in all
the circumstances, wrong;
(b) that, in the course of the taking
of the action, a discretionary power had been exercised for an improper purpose
or on irrelevant grounds; or
(c) in a case where the action
comprised or included a decision to exercise a discretionary power in a
particular manner or to refuse to exercise such a power:
(i) that irrelevant
considerations were taken into account, or that there was a failure to take
relevant considerations into account, in the course of reaching the decision to
exercise the power in that manner or to refuse to exercise the power, as the
case may be; or
(ii) that the complainant
in respect of the investigation or some other person should have been
furnished, but was not furnished, with particulars of the reasons for deciding
to exercise the power in that manner or to refuse to exercise the power, as the
case may be;
this section applies to the decision, recommendation, act
or omission constituting that action.
(2) Where the
Ombudsman is of the opinion:
(a) that
a decision, recommendation, act or omission to which this section applies
should be referred to the appropriate authority for further consideration;
(b) that some particular action could
be, and should be, taken to rectify, mitigate or alter the effects of, a
decision, recommendation, act or omission to which this section applies;
(c) that a decision to which this
section applies should be cancelled or varied;
(d) that a rule of law, provision of
an enactment or practice on which a decision, recommendation, act or omission
to which this section applies was based should be altered;
(e) that reasons should have been, but
were not, given for a decision to which this section applies; or
(f) that any other thing should be
done in relation to a decision, recommendation, act or omission to which this
section applies;
the Ombudsman shall report accordingly to the Department
or prescribed authority concerned.
(3) The Ombudsman:
(a) shall include in a report under subsection (2)
his or her reasons for the opinions specified in the report; and
(b) may also include in such a report
any recommendations he or she thinks fit to make.
(4) The Ombudsman may request the Department
or prescribed authority to which the report is furnished to furnish to him or
her, within a specified time, particulars of any action that it proposes to
take with respect to the matters and recommendations included in the report.
(5) Where the Ombudsman reports under subsection (2)
to a Department or prescribed authority, the Department or authority may
furnish to the Ombudsman such comments concerning the report as it wishes to
make.
(6) The Ombudsman shall furnish a copy of a
report made by him or her under subsection (2) to the Minister concerned.
16
Reports where appropriate action not taken on Ombudsman’s report
(1) Where action that is, in the opinion of
the Ombudsman, adequate and appropriate in the circumstances is not taken with
respect to the matters and recommendations included in a report to a Department
or to a prescribed authority under section 15 within a reasonable time
after the Ombudsman furnished the report to the Department or to the prescribed
authority, the Ombudsman may inform the Prime Minister accordingly in writing.
(2) Where the Ombudsman furnishes information
to the Prime Minister in accordance with subsection (1) in relation to a
report, the Ombudsman shall furnish to the Prime Minister with the information:
(a) if a copy of the report has not
previously been forwarded to the Prime Minister under subsection 15(6)—a copy
of the report; and
(b) if the Department or prescribed
authority to which the report was made has furnished comments concerning the
report to the Ombudsman—a copy of those comments.
(3) In considering whether to furnish
information in relation to a report to the Prime Minister in accordance with subsection (1),
the Ombudsman shall have regard to any comments furnished to him or her by the
Department or prescribed authority to which the report was made.
(4) In the case of a report relating to a
Parliamentary Department, subsections (1) to (3) have effect as follows:
(a) if the report relates to the
Department of the Senate—a reference to the Prime Minister is to be read as a
reference to the President of the Senate;
(b) if the report relates to the
Department of the House of Representatives—a reference to the Prime Minister is
to be read as a reference to the Speaker of the House of Representatives;
(c) in any other case—a reference to
the Prime Minister is to be read as a reference to the President of the Senate
and the Speaker of the House of Representatives.
(5) In the case of a report relating to a
prescribed authority constituted by the chief executive officer of a court or
tribunal, subsections (1) to (3) have effect as follows:
(a) if the report relates to the chief
executive officer of a court—a reference to the Prime Minister is to be read as
a reference to the chief justice or chief judge (however described) of the
court, as the case requires;
(b) if the report relates to the Registrar
of the Administrative Appeals Tribunal—a reference to the Prime Minister is to
be read as a reference to the President of the Tribunal;
(c) if the report relates to the chief
executive officer of a tribunal other than the Administrative Appeals Tribunal—a
reference to the Prime Minister is to be read as a reference to the president
or principal member (however described) of the tribunal or, if the tribunal
consists of a single member, as a reference to that member.
17
Special reports to Parliament
Where the Ombudsman has acted under
subsection 16(1) in relation to a report concerning an investigation made by
him or her, the Ombudsman may also forward to the President of the Senate and
the Speaker of the House of Representatives, for presentation to the Senate and
the House of Representatives, respectively, copies of a report prepared by him
or her concerning the investigation for presentation to both Houses of the
Parliament, being a report that sets out a copy of any comments furnished to
the Ombudsman under subsection 15(5) by the Department or prescribed authority
concerned.
18
Ombudsman may have further discussion with principal officer
After presentation to the Parliament of
a report under section 17 in relation to action taken by a Department or
prescribed authority, the Ombudsman may discuss any matter to which the report
relates with the principal officer of the Department or authority for the
purpose of resolving the matter.
19
Annual report and additional reports to Parliament
(1) The Ombudsman must, as soon as
practicable, and in any event within 6 months, after each 30 June submit
to the Minister, for presentation to the Parliament, a report of the operations
of the Ombudsman during the year that ended on that 30 June.
(2) The Ombudsman may, from time to time,
submit to the Minister for presentation to the Parliament:
(a) a report of the operations of the
Ombudsman during a part of a year; or
(b) a report in respect of any matter
relating to, or arising in connection with, the exercise of the powers, or the
performance of the functions, of the Ombudsman;
but nothing in this section affects the powers and duties
of the Ombudsman under sections 15, 16 and 17.
(4) Where the Ombudsman submits a report to
the Minister under paragraph (1)(a) or under subsection (2), the
Minister shall cause the report to be laid before each House of the Parliament
within 15 sitting days of that House after its receipt by the Minister.
(6) Where the Ombudsman is of the opinion
that it will not be reasonably possible to submit a report in accordance with paragraph (1)(a)
within 6 months after the end of a particular year, the Ombudsman may, within
that period of 6 months, apply to the Minister for an extension of the period,
and, where the Ombudsman does so apply, he or she shall furnish to the Minister
a statement in writing explaining why, in the Ombudsman’s opinion, it will not
be reasonably possible so to submit the report.
(7) The Minister may, on application under subsection (6),
grant such extension as he or she considers reasonable in the circumstances.
(7A) Notwithstanding subsection (1), where
the Minister grants an extension pursuant to an application under subsection (6):
(a) the Minister shall cause to be
laid before each House of the Parliament, within 3 sitting days of that House
after the day on which he or she grants the extension, a copy of the statement
furnished pursuant to subsection (6) in respect of the application
together with a statement specifying the extension granted and his or her
reasons for granting the extension;
(b) the Ombudsman shall submit the
report concerned to the Minister within the period as so extended; and
(c) the Minister shall cause a copy of
the report to be laid before each House of the Parliament within 15 sitting
days of that House after receipt of the report by the Minister.
(7B) Where:
(a) the Ombudsman fails to submit a
report in accordance with paragraph (1)(a) within 6 months after the end
of a particular year; or
(b) the Minister grants an extension
pursuant to an application under subsection (6) and the Ombudsman fails to
submit the report within the period as so extended;
then:
(c) the Ombudsman shall, not later
than 14 days after the end of that period of 6 months or that period of
extension, as the case may be, furnish to the Minister a statement in writing
explaining why the report was not submitted as required; and
(d) the Minister shall cause a copy of
the statement to be laid before each House of the Parliament within 3 sitting
days of that House after receipt of the statement by the Minister.
(8) Where the Ombudsman refers in a report
referred to in subsection (1) or (2) to an investigation made by him or
her under this Act, the Ombudsman shall not, in referring to the investigation,
set out opinions that are, either expressly or impliedly, critical of a
Department, prescribed authority or person unless the Ombudsman has complied
with subsection 8(5) in relation to the investigation.
Part IIA—Establishment, functions, powers and duties of the Defence
Force Ombudsman
19B
Establishment of office of Defence Force Ombudsman
(1) For the purposes of this Act, there shall
be a Defence Force Ombudsman.
(2) The office of Defence Force Ombudsman
shall be held by the person who holds the office of Commonwealth Ombudsman.
(3) The reference in subsection (2) to
the person who holds the office of Commonwealth Ombudsman includes a reference
to a person for the time being acting in that office by virtue of an
appointment under section 29.
19C
Functions of Defence Force Ombudsman
(1) The functions of the Defence Force
Ombudsman are to investigate complaints made to him or her under this Act and
to perform such other functions as are conferred on him or her by:
(a) this Act or the regulations; or
(b) another Act or regulations made
under another Act.
(2) Subject to this Act, the Defence Force
Ombudsman:
(a) shall investigate action that he
or she is authorized by this Act to investigate and in respect of which a
complaint has been made to him or her; and
(b) may, of his or her own motion,
investigate action that he or she is authorized by this Act to investigate.
(3) Subject to subsection (5), the
Defence Force Ombudsman is authorized by this Act to investigate action, being
action that relates to a matter of administration, taken either before or after
the commencement of this Part by a Department or by a prescribed authority,
with respect to a matter that is related to the service of a member of the
Defence Force or that arises in consequence of a person serving or having
served in the Defence Force.
(4) Without limiting the generality of subsection (3),
action referred to in that subsection includes action taken by a Department, or
by a prescribed authority, with respect to the payment of an allowance or
pension to, or the provision of a benefit for, a member of the Defence Force or
a dependant of such a member, being an allowance, pension or benefit that is or
may be payable or is or may be provided by reason of, or as a result of, the
service of the member in the Defence Force.
(5) The Defence Force Ombudsman is not
authorized by this Act to investigate:
(a) action taken by a Minister;
(b) action taken by a Justice or Judge
of a court created by the Parliament;
(c) action taken by:
(i) a magistrate or
coroner for the Australian Capital Territory, the Territory of Christmas Island
or the Territory of Cocos (Keeling) Islands; or
(ii) a person who holds
office as a magistrate in a State or the Northern Territory in the performance
of the functions of a magistrate conferred on him or her by or under an Act;
(d) action taken in connection with
proceedings against a member of the Defence Force for an offence arising under
any law, including a law of the United Kingdom as applying by virtue of a law
of the Commonwealth, relating to the discipline of the Defence Force or of an
arm or part of the Defence Force; or
(e) action taken in relation to the
grant or refusal of an honour or award to a particular member of the Defence
Force.
(6) The reference in paragraph (5)(a) to
action taken by a Minister does not include a reference to action taken by a
delegate of a Minister, and, for the purposes of this subsection, action shall
be deemed to have been taken by such a delegate notwithstanding that the action
is taken in pursuance of a power that is deemed by a provision of an enactment,
when exercised by the delegate, to have been exercised by the Minister.
(7) For the purposes of the application of
this Act to or in relation to the Defence Force Ombudsman, action taken by a
Department or by a prescribed authority shall not be regarded as having been
taken by a Minister by reason only that the action was taken by the Department
or authority in relation to action that has been, is proposed to be, or may be,
taken by a Minister personally.
(8) The reference in paragraph (5)(e) to
action taken in relation to the grant or refusal of an honour or award to a
particular member of the Defence Force does not include a reference to action
taken in relation to the grant or refusal of honours or awards to members of
the Defence Force generally, or of an arm or part of the Defence Force, with
respect to their service in a particular area or for a particular period.
(9) The reference in subsection (4) to a
dependant of a member of the Defence Force means:
(a) in relation to action taken under
an enactment—a person who is, or is claiming to be, a dependant of a member, or
was, or is claiming to have been, a dependant of a deceased member, of the
Defence Force for the purposes of that enactment; or
(b) in any other case—a person who is,
or is claiming to be, wholly or partly dependent on a member of the Defence
Force or who was, or is claiming to have been, at the date of the death of a
deceased member of the Defence Force, wholly or partly dependent on that
member.
19D
Discretion to investigate complaints as Commonwealth Ombudsman or as Defence
Force Ombudsman
Where a complaint with respect to action
taken by a Department or by a prescribed authority is made to the Commonwealth
Ombudsman or the Defence Force Ombudsman and the person holding that office
considers, having regard to the functions and duties of each of those offices,
that it would be more appropriate to deal with, or to continue to deal with,
the complaint or part of the complaint in his or her capacity as the holder of
the other office, he or she may deal with, or continue or deal with, as the
case may be, the complaint or that part of the complaint accordingly.
19E
Discretion with respect to certain complaints
(1) Where a member of the Defence Force makes
a complaint to the Defence Force Ombudsman with respect to action in respect of
which the member was entitled to seek and has sought, in the manner provided by
or under the Defence Act 1903, redress from a member of the Defence
Force authorized by or under that Act to grant redress:
(a) the Defence Force Ombudsman shall
not commence to investigate the action before the twenty‑ninth day after
the complainant sought the redress unless:
(i) redress is granted
before that day and the conditions set out in subparagraphs (b)(i) and
(ii) are satisfied in respect of the redress; or
(ii) the Defence Force
Ombudsman is of the opinion that there are special reasons justifying the
commencement of the investigation of the complaint before that day; and
(b) where redress is granted before
the Defence Force Ombudsman commences, or after he or she has commenced, to
investigate the action, the Defence Force Ombudsman shall not investigate, or
continue to investigate, the action unless:
(i) the complainant
notifies the Defence Force Ombudsman that the redress is not, in the opinion of
the complainant, adequate in all the circumstances; and
(ii) the Defence Force
Ombudsman is of the opinion that the redress was not reasonably adequate.
(2) Where a member of the Defence Force who
has complained to the Defence Force Ombudsman is able to seek, but has not
sought, in the manner provided by or under the Defence Act 1903, redress
in respect of the action to which the complaint relates from a member of the
Defence Force authorized by or under that Act to grant redress, the Defence
Force Ombudsman shall not investigate the complaint unless he or she is of the
opinion that the member was, by reason of special circumstances, justified in
refraining from seeking redress.
19F
Application of provisions of Act to Defence Force Ombudsman
(1) The provisions of Part I, Part II
(other than sections 4, 5, 8A and 19), Division 2 of Part III
(other than subsection 31(2)) and Part IV (other than subsections 35(7)
and (7A)) apply to and in relation to the Defence Force Ombudsman and so apply
as if:
(a) a reference in any of those
provisions (other than section 34) to the Ombudsman were a reference to
the Defence Force Ombudsman; and
(b) a reference in any of those
provisions to a complaint made to the Ombudsman were a reference to a complaint
made to the Defence Force Ombudsman.
(2) Subsection 6(1A) does not apply in
relation to a complaint made by a member of the Defence Force to the Defence
Force Ombudsman.
(3) The Defence Force Ombudsman has the same
powers and duties with respect to the submission of reports relating to the
operations of, and to the exercise of the powers and performance of the
functions of, the Defence Force Ombudsman, as the Ombudsman has under section 19
with respect to the submission of reports relating to the operations of, and to
the exercise of the powers and performance of the functions of, the Ombudsman
(other than such reports of the Ombudsman relating to the Australian Capital
Territory).
(4) The first report relating to the
operations of the Defence Force Ombudsman during a year shall relate to the
operations of the Defence Force Ombudsman during the period that commenced on
the date of commencement of this Part and ended on the 30 June first
occurring after that date.
(5) A report relating to the operations of
the Defence Force Ombudsman during a year may be included in a report under
section 19 relating to the operations of the Ombudsman during that year.
Part IIB—Establishment, functions, powers and duties of the Postal
Industry Ombudsman
Division 1—Preliminary
19G
Definitions
In this Part:
officer means:
(a) in relation to Australia Post:
(i) a person who is
employed in the service of, or is a member of the staff of, Australia Post,
whether or not he or she is employed by Australia Post; or
(ii) a person authorised by
Australia Post to exercise any powers or perform any functions of Australia
Post on behalf of Australia Post; or
(b) in relation to a registered PPO:
(i) if the registered PPO
is an individual—the individual or an employee of the individual; or
(ii) if the registered PPO
is a body corporate—a director, the secretary or an employee of the registered
PPO; or
(iii) if the registered PPO
is a partnership—a partner in, or an employee of, the partnership.
principal officer means:
(a) in relation to Australia Post—the
Managing Director of Australia Post; or
(b) in relation to a registered PPO:
(i) if the registered PPO
is an individual—the individual; or
(ii) in any other case—the
individual primarily responsible for the management of the registered PPO.
19H
Action taken by contractors
(1) Subsections (2) and (3) apply if:
(a) a contractor, or an employee of a
contractor, in relation to a postal services contract with Australia Post or a
registered PPO, takes action with respect to the provision of a postal or
similar service; and
(b) the contractor, or the employee,
took the action to fulfil or purport to fulfil an obligation under:
(i) if the contractor is
responsible under another contract for the provision of services covered by the
postal services contract—the other contract; or
(ii) otherwise—the postal
services contract.
Attribution of action to Australia Post or registered
PPO
(2) For the purposes of this Part, the action
is taken to have been taken by Australia Post or the registered PPO (as the
case may be).
Persons taken to be officers of Australia Post or
registered PPO
(3) For the purposes of this Part, the
following are taken to be officers of Australia Post or the registered PPO (as
the case may be) in relation to that action:
(a) the person who took the action;
(b) if the person who took the action
was the employee of a contractor—the contractor;
(c) if paragraph (b) applies and
the contractor is:
(i) a body corporate—the
directors and the secretary of the body corporate; or
(ii) a partnership—the
partners in the partnership.
Contractors and postal services contracts
(4) In this section:
contractor, in relation to a postal services
contract, means a person who is:
(a) a party to the postal services
contract; or
(b) both:
(i) a party to a contract
(the subcontract) with a person who is a contractor, in relation
to the postal services contract, because of a previous application of this
definition; and
(ii) responsible under the
subcontract for the provision of services covered by the postal services
contract.
postal services contract means a contract
relating to the provision of postal or similar services within Australia.
19J
Continued application of this Act to deregistered PPOs
(1) This section applies if:
(a) a registered PPO took action at a
particular time; and
(b) the Postal Industry Ombudsman
receives a complaint in respect of that action within 12 months after that
time; and
(c) the PPO applies after that time,
under subsection 19ZC(1), to no longer be registered for the purposes of this
Part (whether or not the application was made before the complaint was
received).
(2) This Act applies as if the PPO were a
registered PPO in relation to that complaint.
19K
Part IIB not to affect operation of other provisions of this Act
This Part does not, by implication,
affect the operation of other provisions in this Act.
Division 2—Establishment
and functions of the Postal Industry Ombudsman
19L
Establishment of office of Postal Industry Ombudsman
(1) For the purposes of this Act, there is to
be a Postal Industry Ombudsman.
(2) The office of Postal Industry Ombudsman
is to be held by the person who holds the office of Commonwealth Ombudsman.
(3) The reference in subsection (2) to
the person who holds the office of Commonwealth Ombudsman includes a reference
to a person for the time being acting in that office because of an appointment
under section 29.
19M Functions
of Postal Industry Ombudsman
(1) The functions of the Postal Industry
Ombudsman are to investigate complaints made to him or her under this Act and
to perform such other functions as are conferred on him or her by:
(a) this Act or the regulations; or
(b) another Act or regulations made
under another Act.
(2) Subject to this Act, the Postal Industry
Ombudsman:
(a) is to investigate action that he
or she is authorised by this Act to investigate and in respect of which a
complaint has been made to him or her (other than a complaint excluded by subsection (4));
and
(b) may, on his or her own initiative,
investigate action that he or she is authorised by this Act to investigate.
(3) The Postal Industry Ombudsman is
authorised by this Act to investigate action taken by:
(a) Australia Post; or
(b) a registered PPO;
with respect to the provision of a postal or similar
service.
(4) A
complaint is excluded by this subsection if:
(a) the complaint was made by
Australia Post in respect of action taken by a registered PPO; or
(b) the complaint was made by a
registered PPO in respect of action taken by Australia Post or another
registered PPO; or
(c) the complaint was made more than
12 months after the action was taken.
(5) Paragraph (2)(b) applies only if the
Postal Industry Ombudsman starts the investigation no later than 12 months
after the action was taken.
19N
Discretion to investigate complaints as Commonwealth Ombudsman or as Postal
Industry Ombudsman
(1) This section applies if a complaint has
been made to the Postal Industry Ombudsman or the Commonwealth Ombudsman with
respect to action taken by Australia Post.
Postal Industry Ombudsman may transfer complaint to
Commonwealth Ombudsman
(2) Subsection (3) applies if:
(a) the complaint was made to the
Postal Industry Ombudsman; and
(b) in the opinion of the Postal
Industry Ombudsman, it would be more appropriate to deal with, or to continue
to deal with, the complaint or part of the complaint in his or her capacity as
the Commonwealth Ombudsman.
(3) The Postal Industry Ombudsman may:
(a) either:
(i) decide not to deal
with the complaint, or part of the complaint; or
(ii) if he or she has
started to deal with the complaint—decide not to deal further with the
complaint, or part of the complaint; and
(b) transfer the complaint, or part of
the complaint, to the Commonwealth Ombudsman.
(4) A complaint that is transferred under subsection (3)
is taken to be a complaint that was made to the Commonwealth Ombudsman.
Commonwealth Ombudsman may transfer complaint to Postal
Industry Ombudsman
(5) Subsection (6) applies if:
(a) the complaint was made to the
Commonwealth Ombudsman; and
(b) the complaint was made no later
than 12 months after the action was taken; and
(c) in the opinion of the Commonwealth
Ombudsman, it would be more appropriate to deal with, or to continue to deal
with, the complaint or part of the complaint in his or her capacity as the
Postal Industry Ombudsman.
(6) The Commonwealth Ombudsman may:
(a) either:
(i) decide not to deal
with the complaint, or part of the complaint; or
(ii) if he or she has
started to deal with the complaint—decide not to deal further with the
complaint, or part of the complaint; and
(b) transfer the complaint, or part of
the complaint, to the Postal Industry Ombudsman.
(7) A complaint that is transferred under subsection (6)
is taken to be a complaint that was made to the Postal Industry Ombudsman.
(8) In forming an opinion under paragraph (2)(b)
or (5)(c), the person holding the office of the Commonwealth Ombudsman and of
the Postal Industry Ombudsman must have regard to the functions and duties of
each of those offices.
Notice of transferral to be given to complainant
(9) If the Commonwealth Ombudsman or the
Postal Industry Ombudsman transfers a complaint, or part of a complaint, he or
she must give notice of the transfer, in writing, to the complainant.
19P
Discretion to refer complaint to another statutory office‑holder
(1) This section applies if:
(a) Australia Post or a registered PPO
has taken action; and
(b) before or after starting to
investigate that action under paragraph 19M(2)(a), the Postal Industry
Ombudsman becomes of the opinion that:
(i) a statutory office‑holder
(other than the Postal Industry Ombudsman or the Commonwealth Ombudsman) has
the function of investigating, reviewing or enquiring into action of that kind;
and
(ii) the action could be
more conveniently or effectively dealt with by that statutory office‑holder.
(2) The Postal Industry Ombudsman may decide
not to investigate the action, or not to investigate the action further, as the
case may be, and, if the Postal Industry Ombudsman so decides, he or she must
transfer the complaint to that other statutory office‑holder.
(3) If the Postal Industry Ombudsman transfers
a complaint under subsection (2), the Postal Industry Ombudsman must, as
soon as is reasonably practicable:
(a) give notice of the transfer, in
writing, to the complainant; and
(b) give to the other statutory office‑holder
any information or documents that relate to the complaint and are in the
possession or under the control of the Postal Industry Ombudsman.
(4) In this section:
statutory office‑holder means a person
who holds any office or appointment under a law of the Commonwealth, or under a
law of a State or Territory.
19Q
Discretion not to investigate certain complaints
(1) This section applies if:
(a) a complaint has been made to the
Postal Industry Ombudsman with respect to action taken by Australia Post or by
a registered PPO; and
(b) in the opinion of the Postal
Industry Ombudsman:
(i) the complaint is
frivolous or vexatious or was not made in good faith; or
(ii) the complainant does
not have a sufficient interest in the subject matter of the complaint; or
(iii) an investigation, or
further investigation, of the action is not warranted having regard to all the
circumstances.
(2) The Postal Industry Ombudsman may, in his
or her discretion:
(a) decide not to investigate the
action; or
(b) if he or she has started to
investigate the action—decide not to investigate the action further.
Division 3—Powers and
duties of the Postal Industry Ombudsman
19R
Application of other provisions of this Act to the Postal Industry Ombudsman
(1) Subject to this section, the provisions
covered by subsection (3) apply in relation to the Postal Industry
Ombudsman.
(2) Unless the contrary intention appears,
the provisions covered by subsection (3) apply as if:
(a) a reference in any of those
provisions to the Ombudsman were a reference to the Postal Industry Ombudsman;
and
(b) a reference in any of those
provisions to any of the following were a reference to Australia Post or a
registered PPO:
(i) a Department;
(ii) a prescribed
authority;
(iii) a Department or a
prescribed authority; and
(c) a reference in any of those
provisions to an officer were a reference to an officer within the meaning of
this Part; and
(d) a reference in any of those
provisions to a principal officer were a reference to a principal officer
within the meaning of this Part.
(3) The provisions covered by this subsection
are:
(a) Part I, other than the
following provisions:
(i) subsections 3(2) to
(5A);
(ii) subsections 3(6A) to
(6C);
(iii) subsections 3(7A) and
(7B);
(iv) subsections 3(9) to
(18);
(v) section 3A; and
(b) Part II, other than the
following provisions:
(i) sections 4 and 5;
(ii) subsection 6(1);
(iii) subsections 6(4A) to
(4H);
(iv) subsections 6(6) to
(15);
(v) section 6A;
(vi) paragraph 8(7A)(b);
(vii) subsections 8(8) to (11);
(viii) sections 8A and
8B;
(viiia) paragraphs 9(1AA)(ab)
and (ac);
(ix) paragraph 9(4)(ab);
(x) sections 10, 10A
and 11;
(xi) subsections 11A(1) and
(5);
(xii) sections 14 to 18;
(xiii) subsection 19(8); and
(c) subsection 31(1); and
(d) Part IV, other than the
following provisions:
(i) section 34;
(ia) subparagraph
35(3)(b)(ia);
(ii) subsections 35(7) and
(7A);
(iii) paragraph 35A(3)(a).
(4) Each provision of this Act specified in
column 1 of the table applies in relation to the Postal Industry Ombudsman in
accordance with the table:
|
Application of Act to
Postal Industry Ombudsman
|
|
|
Column 1
|
Column 2
|
Column 3
|
|
Item
|
This provision of this
Act...
|
applies in relation to
the Postal Industry Ombudsman as if a reference in that provision to...
|
were a reference to...
|
|
1
|
subsection 7A(1)
|
paragraph 5(1)(b)
|
paragraph 19M(2)(b)
|
|
2
|
subsection 11A(4)
|
the Minister
|
the Minister and the Minister administering the Australian
Postal Corporation Act 1989
|
|
3
|
subsections 12(4) and (5)
|
section 15
|
section 19V
|
|
4
|
subsection 35(6A)
|
paragraph 6(4A)(e) or (4D)(e)
|
paragraph 19P(3)(b)
|
|
5
|
subsection 35B(2) (paragraph (a) of the definition of
listed disclosure method)
|
Division 2 of Part II
|
section 19V, 19W or 19X
|
|
6
|
subsection 35B(2) (paragraph (b) of the definition of
listed disclosure method)
|
section 6 or 6A
|
section 19N or 19P
|
(5) For the purposes of this Part, subsection
3(6) applies in relation to the Postal Industry Ombudsman as if a reference in
that subsection to a prescribed authority were a reference to Australia Post.
19S
Powers of the Postal Industry Ombudsman under section 9
The Postal Industry Ombudsman may
exercise his or her powers under section 9 for any of the following
purposes:
(a) to determine whether he or she may
investigate action under this Part;
(b) to decide whether or not to
investigate action, or to investigate action further, under this Part;
(c) to start or further the conduct of
an investigation under this Part;
(d) to prepare a report in relation to
an investigation under this Part;
(e) if he or she has exercised a power
for any of the purposes mentioned in paragraphs (a) to (d)—to ascertain
what action has been taken by Australia Post or by a registered PPO following
the exercise of that power.
19T
Duty to accord procedural fairness
The Postal Industry Ombudsman must
comply with the rules of procedural fairness when exercising a power under this
Act.
Example 1: If the Postal Industry Ombudsman sets out a
critical opinion of a person in a report under section 19V, he or she must
give that person an opportunity to appear and make submissions to him or her
(see subsection 8(5)).
Example 2: The Postal Industry Ombudsman must accord
procedural fairness to a person if he or she sets out a critical opinion of the
person:
(a) in disclosing information, or making a statement,
under subsection 35A(1); or
(b) in referring to an investigation in a report
under section 19X.
19U
Disclosure of identifying information
The Postal Industry Ombudsman must not,
in referring to an investigation in a report under section 19V or 19X,
disclose the name of a complainant or any other matter that would enable a
complainant to be identified, unless it is fair and reasonable in all the
circumstances to do so.
19V
Postal Industry Ombudsman may report to Australia Post or registered PPO
(1) This section applies if:
(a) an investigation under this Act
into action taken by Australia Post or a registered PPO (the investigated
body) has been completed; and
(b) the Postal Industry Ombudsman is
of the opinion that the action taken:
(i) appears to have been
contrary to law; or
(ii) was unreasonable,
unjust, oppressive or improperly discriminatory; or
(iii) was otherwise, in all
the circumstances, wrong; and
(c) the Postal Industry Ombudsman is
of the opinion that:
(i) some particular action
could be, and should be, taken to rectify, mitigate or alter the effects of the
action taken; or
(ii) a policy or practice
on which the action taken was based should be altered; or
(iii) reasons should have
been, but were not, given for the action taken; or
(iv) any other thing should
be done in relation to the action taken.
(2) The Postal Industry Ombudsman must report
accordingly to the investigated body.
(3) The Postal Industry Ombudsman:
(a) must include in the report his or
her reasons for the opinions specified in the report; and
(b) may also include in the report any
recommendations he or she thinks fit to make.
(4) The Postal Industry Ombudsman may ask the
investigated body to give him or her, within a specified time, particulars of
any action that the investigated body proposes to take with respect to the
matters and recommendations included in the report.
(5) The investigated body may give the Postal
Industry Ombudsman comments about the report.
(6) The Postal Industry Ombudsman must give a
copy of:
(a) the report; and
(b) any comments given under subsection (5);
to the Minister administering the Australian Postal
Corporation Act 1989.
19W
Minister to table certain reports in Parliament
(1) This section applies if:
(a) the Postal Industry Ombudsman has
given a report under section 19V to an investigated body; and
(b) action that is, in the opinion of
the Postal Industry Ombudsman, adequate and appropriate in the circumstances is
not taken with respect to the matters and recommendations included in the
report within a reasonable time after the report was given to the investigated
body.
(2) The Postal Industry Ombudsman may request
the Minister administering the Australian Postal Corporation Act 1989 to
cause copies of the report to be laid before each House of the Parliament.
(3) If the Postal Industry Ombudsman makes a
request under subsection (2), the Minister administering the Australian
Postal Corporation Act 1989 must cause copies of:
(a) the report; and
(b) any comments given under
subsection 19V(5) before the request was made;
to be laid before each House of the Parliament within 15
sitting days of that House after that Minister receives the request.
19X
Annual reports
(1) The Postal Industry Ombudsman has the
same powers and duties under this section as the Ombudsman has under
subsections 19(1) to (7B) with respect to the submission of reports relating
to:
(a) his or her operations; and
(b) the exercise of his or her powers
and the performance of his or her functions.
(2) For the purposes of subsection (1),
the powers and duties of the Ombudsman do not include his or her powers and
duties with respect to reports relating to the Australian Capital Territory.
(3) A report relating to the operations of
the Postal Industry Ombudsman during a year may be included in a report under
section 19 relating to the operations of the Ombudsman during that year.
(4) A report relating to the operations of
the Postal Industry Ombudsman during a year must:
(a) identify the number of complaints
received by the Postal Industry Ombudsman under this Part during that year; and
(b) if the Postal Industry Ombudsman
has investigated action under paragraph 19M(2)(a)—identify:
(i) the number of such
investigations started during that year; and
(ii) the number of such
investigations completed during that year; and
(c) if the Postal Industry Ombudsman
has investigated action under paragraph 19M(2)(b)—identify:
(i) the number of such
investigations started during that year; and
(ii) the number of such
investigations completed during that year; and
(d) include details of the
circumstances and number of occasions where the Postal Industry Ombudsman has
made a requirement of a person under section 9 (as that section applies
because of sections 19R and 19S) during that year; and
(e) include details of the
circumstances and number of occasions where the holder of the office of Postal
Industry Ombudsman has decided under subsection 19N(3) to deal with, or to
continue to deal with, a complaint or part of a complaint in his or her
capacity as the holder of the office of Commonwealth Ombudsman during that
year; and
(f) include details of
recommendations made during that year in reports under section 19V; and
(g) include statistical information
about actions taken during that year as a result of such recommendations.
19Y
Postal Industry Ombudsman may notify employer of misconduct
(1) This section applies if the Postal
Industry Ombudsman becomes of the opinion, either before or after completing an
investigation under this Act, that there is evidence that a person who is an
officer of Australia Post or of a registered PPO, has engaged in misconduct.
(2) If the Postal Industry Ombudsman is of
the opinion that the evidence is, in all the circumstances, of sufficient force
to justify his or her doing so, the Postal Industry Ombudsman may bring the
evidence to the notice of:
(a) if the person is the principal
officer of Australia Post—the Minister administering the Australian Postal
Corporation Act 1989; or
(b) if the person is an officer of Australia
Post but not the principal officer of Australia Post—the principal officer of
Australia Post; or
(c) if the person is an officer of a
registered PPO—the principal officer of that PPO.
19Z
Limitation on liability where information or documents provided in good faith
or when required to do so
(1) A person is neither liable to a
proceeding, nor subject to a liability, under an enactment merely because the
person, in good faith and in relation to the Postal Industry Ombudsman’s
functions or powers:
(a) gives information to the Postal
Industry Ombudsman (other than in accordance with a requirement under section 9);
or
(b) gives a document or other record
to the Postal Industry Ombudsman (other than in accordance with a requirement
under section 9).
Note: For information, documents or other records
given in accordance with a requirement under section 9, see subsections
9(4) and (5).
(2) To avoid doubt, subsection (1) does
not prevent the person from being liable to a proceeding, or being subject to a
liability, for conduct of the person that is revealed by the information,
document or record given to the Postal Industry Ombudsman.
(3) This section does not limit section 37.
Division 4—Register of PPOs
19ZA
Registration of PPOs
(1) The Postal Industry Ombudsman is to
establish and maintain a Register of PPOs.
(2) A PPO may apply, in writing, to the
Postal Industry Ombudsman to be registered for the purposes of this Part.
(3) If the Postal Industry Ombudsman receives
an application under subsection (2), the Postal Industry Ombudsman must
include that PPO on the Register of PPOs.
(4) A PPO is taken to be registered for the
purposes of this Part from the time when the Postal Industry Ombudsman includes
that PPO on the Register.
19ZB
Information to be included in Register
(1) The Postal Industry Ombudsman must
include the following information in the register:
(a) the name of the PPO;
(b) if the PPO has an ABN (within the
meaning of the section 41 of the A New Tax System (Australian Business
Number) Act 1999)—that ABN;
(c) the date on which the PPO was
included on the Register.
(2) A registered PPO must notify the Postal
Industry Ombudsman of any changes to the information included in relation to
that PPO in the Register.
19ZC
Deregistration of PPOs
(1) A registered PPO may apply, in writing,
to the Postal Industry Ombudsman to no longer be registered for the purposes of
this Part.
(2) If the Postal Industry Ombudsman receives
an application under subsection (1) on a particular date (the deregistration
date):
(a) the Postal Industry Ombudsman must
enter the deregistration date in the Register of PPOs; and
(b) the Postal Industry Ombudsman must
remove the PPO from the Register of PPOs 12 months after the deregistration
date; and
(c) the PPO is taken to no longer be
registered for the purposes of this Part from the deregistration date.
Note: In certain circumstances, a PPO that is no
longer registered for the purposes of this Part may still be treated as a registered
PPO (see section 19J).
19ZD
Register may be maintained by electronic means
(1) The Register may be maintained by
electronic means.
(2) The Register is to be made available for
inspection on the Internet.
Division 5—Fees for
investigations
19ZE Fees
for investigations
(1) The Postal Industry Ombudsman may, on
behalf of the Commonwealth, charge Australia Post or a registered PPO fees in
relation to an investigation:
(a) that was conducted under paragraph
19M(2)(a), into action taken by Australia Post or the registered PPO (as the
case may be); and
(b) that has been completed.
Note: In certain circumstances, a PPO that is no
longer registered for the purposes of this Part may still be treated as a
registered PPO (see section 19J).
(2) The amount of a fee:
(a) must not be more than the amount
that, in the opinion of the Postal Industry Ombudsman, represents the costs
incurred by the Postal Industry Ombudsman in conducting the investigation; and
(b) must not be such as to amount to
taxation.
(3) The Minister administering the Australian
Postal Corporation Act 1989 may make a written determination
specifying the total amount of fees that may be charged under this section in
relation to investigations that the Postal Industry Ombudsman completed during
a specified financial year.
(4) A determination made under subsection (3)
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
(5) If a determination has been made under subsection (3)
for a financial year, the total amount of fees charged under this section in
relation to investigations that the Postal Industry Ombudsman completed during
that financial year must not exceed the amount specified in the determination.
(6) The regulations may:
(a) prescribe one or more methods to
be used in working out the amount of a fee; and
(b) prescribe the time by which a fee
is due and payable.
(7) A fee is payable to the ACA on behalf of
the Commonwealth.
(8) The ACA must, as soon as practicable,
bank any amount it receives under subsection (7) in an official account
within the meaning of the Financial Management and Accountability Act 1997.
(9) A fee:
(a) is a debt due to the ACA on behalf
of the Commonwealth; and
(b) is recoverable by the ACA, on
behalf of the Commonwealth, in a court of competent jurisdiction.
Part III—Conditions of service, and staff, of the Ombudsman
Division 1—Ombudsman
20
Interpretation
In this Division, unless the contrary
intention appears, Ombudsman means the Commonwealth Ombudsman or
a Deputy Commonwealth Ombudsman.
21
Appointment of Ombudsman
(1) An Ombudsman shall be appointed by the
Governor‑General.
(2) An Ombudsman holds office on such terms
and conditions (if any) in respect to matters not provided for in this Act as
are prescribed.
22
Tenure of office
(1) Subject to this Act, an Ombudsman holds
office for such period, not exceeding 7 years, as is specified in the
instrument of his or her appointment, but is eligible for re‑appointment.
23
Deputy Ombudsman
(1) The Minister may:
(b) by notice in writing published in
the Gazette, designate a Deputy Ombudsman as the Deputy Ombudsman
(Defence Force).
24
Salary and allowances
(1) An Ombudsman shall be paid such
remuneration as is determined by the Remuneration Tribunal.
(2) An Ombudsman shall be paid such
allowances as are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
25
Leave of absence
(1) The Ombudsman has such recreation leave
entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Ombudsman
leave of absence, other than recreation leave, on such terms and conditions as
to remuneration or otherwise as the Minister determines.
26
Resignation
An Ombudsman may resign his or her
office by writing under his or her hand delivered to the Governor‑General.
27
Retirement
The Governor‑General may, with the
consent of an Ombudsman, retire that Ombudsman on the ground of physical or
mental incapacity.
28
Suspension and removal of Ombudsman
(1) The Governor‑General may remove an
Ombudsman from office on an address praying for his or her removal on the
ground of misbehaviour or physical or mental incapacity being presented to the
Governor‑General by each House of the Parliament in the same session of
the Parliament.
(2) The Governor‑General may suspend an
Ombudsman from office on the ground of misbehaviour or physical or mental
incapacity.
(3) Where the Governor‑General suspends
an Ombudsman from office, the Minister shall cause a statement of the grounds
of the suspension to be laid before each House of the Parliament within 7
sitting days of the House after the suspension.
(4) Where such a statement has been laid
before a House of the Parliament, that House may, within 15 sitting days of
that House after the day on which the statement has been laid before it, by
resolution, declare that the Ombudsman should be removed from office and, if
each House so passes such a resolution, the Governor‑General shall remove
the Ombudsman from office.
(5) If, at the expiration of 15 sitting days
of a House of the Parliament after the day on which the statement has been laid
before that House, that House has not passed such a resolution, the suspension
terminates.
(6) The suspension of an Ombudsman from
office under this section does not affect any entitlement of the Ombudsman to
be paid remuneration and allowances.
(7) If an Ombudsman becomes bankrupt, applies
to take the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit, the Governor‑General shall remove him or
her from office.
(7A) If an Ombudsman is absent from duty, except
on leave of absence, for 14 consecutive days or for 28 days in any 12 months,
the Governor‑General may remove him or her from office.
(8) An Ombudsman shall not be removed or
suspended from office except as provided by this section.
28A
Removal taken to be retirement on ground of invalidity
(1) If an Ombudsman is removed from office
under section 28 of this Act following his or her suspension from office
on the ground of physical or mental incapacity, then, for the purposes of the Superannuation
Act 1976, he or she is taken to have been retired on the ground of
invalidity within the meaning of Part IVA of that Act.
(2) In spite of subsection (1), section 54C
of the Superannuation Act 1976 applies in relation to the Ombudsman.
(3) If an Ombudsman is removed from office
under section 28 of this Act following his or her suspension from office
on the ground of physical or mental incapacity, then, for the purposes of the Superannuation
Act 1990, he or she is taken to have been retired on the ground of
invalidity within the meaning of that Act.
(4) In spite of subsection (3), section 13
of the Superannuation Act 1990 applies in relation to the Ombudsman.
28B
Retirement on ground of invalidity under the Superannuation Acts
(1) In spite of anything contained in
sections 27 and 28, an Ombudsman who:
(a) is an eligible employee for the
purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum
retiring age within the meaning of that Act;
is not capable of being retired from office on the ground
of invalidity within the meaning of Part IVA of that Act unless the
Commonwealth Superannuation Board of Trustees No. 2 has given a
certificate under section 54C of that Act.
(2) In spite of anything contained in
sections 27 and 28, an Ombudsman who:
(a) is a member of the superannuation
scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground
of invalidity within the meaning of that Act unless the Commonwealth
Superannuation Board of Trustees No. 1 has given a certificate under
section 13 of that Act.
29
Acting appointments
(1) The Minister may appoint a person to act
in the office of Commonwealth Ombudsman:
(a) during a vacancy in that office,
whether or not an appointment has previously been made to that office; or
(b) during any period, or during all
periods, when the Ombudsman is absent from duty or from Australia or is, for
any other reason, unable to perform the functions of his or her office;
but a person appointed to act during a vacancy shall not
continue so to act for more than 12 months.
(1A) The Minister may appoint a person to act in
an office of Deputy Commonwealth Ombudsman:
(a) during a vacancy in that office,
whether or not an appointment has previously been made to that office; or
(b) during any period, or during all
periods, when a Deputy Ombudsman is absent from duty or from Australia or is,
for any other reason, unable to perform the functions of Deputy Ombudsman;
but a person appointed to act during a vacancy shall not
continue so to act for more than 12 months.
(2) An appointment of a person under subsection (1)
or (1A) may be expressed to have effect only in such circumstances as are
specified in the instrument of appointment.
(3) If a Deputy Commonwealth Ombudsman is at
any time appointed to act in the office of Commonwealth Ombudsman, his or her
office shall, during the period of his or her appointment, be deemed, for the
purposes of this section, to be vacant.
(4) Where a person is acting in an office of
Commonwealth Ombudsman or Deputy Commonwealth Ombudsman in accordance with paragraph (1)(b)
or (1A)(b) and the office becomes vacant while that person is so acting, then,
subject to subsection (2), that person may continue to act in the office
until the Minister otherwise directs, the vacancy is filled or a period of 12
months from the date on which the vacancy occurred expires, whichever first
happens.
(5) The Minister may terminate an appointment
under subsection (1) or (1A) at any time.
(6) The Minister may determine the terms and
conditions of appointment, including remuneration and allowances, of a person
appointed under this section.
(7) Sections 25 and 26 apply in relation
to a person appointed under this section in like manner as they apply in
relation to an Ombudsman.
(8) Where a person is acting in an office in
pursuance of an appointment under this section, he or she has, and may
exercise, all the powers, and he or she may perform all the functions, of the
holder of that office.
(9) The validity of anything done by or in
relation to a person purporting to act in an office under this section shall
not be called in question on the ground that the occasion for the appointment
had not arisen, that there was a defect or irregularity in or in connection
with the appointment, that the appointment had ceased to have effect or that
the occasion for the person to act had not arisen or had ceased.
Division 2—Staff
31
Staff
(1) The staff required for the purposes of
this Act shall be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Ombudsman and the APS
employees assisting the Ombudsman together constitute a Statutory Agency; and
(b) the Ombudsman is the Head of that
Statutory Agency.
Part IV—Miscellaneous
33
Ombudsman not to be sued
(1) Subject to section 35, neither the
Ombudsman nor a person acting under his or her direction or authority is liable
to an action, suit or proceeding for or in relation to an act done or omitted
to be done in good faith in exercise or purported exercise of any power or
authority conferred by this Act or Division 7 of Part V of the Australian
Federal Police Act 1979.
(2) A reference in this section to the
Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the
Ombudsman.
34
Delegation
(1) The Ombudsman may, either generally or as
otherwise provided by the instrument of delegation, by instrument in writing,
delegate to a person:
(a) all or any of his or her powers
under this Act, other than his or her powers under sections 15, 16, 17 and
19 and this power of delegation; and
(b) any power exercisable by him or
her by virtue of an instrument of delegation referred to in subsection (7)
the sub‑delegation of which is permitted by the relevant law of the State
or by the instrument of delegation; and
(c) all or any of his or her powers
under Division 7 of Part V of the Australian Federal Police Act
1979.
(2) The Defence Force Ombudsman may, either
generally or as otherwise provided by the instrument of delegation, by
instrument in writing, delegate to a person all or any of his or her powers
under this Act, other than his or her powers under sections 15, 16 and 17
and his or her powers referred to in subsection 19F(3).
(2A) The Postal Industry Ombudsman may, either
generally or as otherwise provided by the instrument of delegation, by
instrument in writing, delegate to a person all or any of his or
her powers under this Act, other than his or her powers under sections 19V
and 19W and his or her powers referred to in section 19X.
(3) A power delegated under subsection (1),
(2) or (2A), when exercised by the delegate shall, for the purposes of this
Act, be deemed to have been exercised by the Ombudsman, Defence Force Ombudsman
or Postal Industry Ombudsman, as the case may be.
(4) A delegation under subsection (1),
(2) or (2A) does not prevent the exercise of a power by the Ombudsman, Defence
Force Ombudsman or Postal Industry Ombudsman, as the case may be.
(5) A delegate shall, upon request by a
person affected by the exercise of any powers delegated to him or her, produce
the instrument of delegation or a copy of the instrument, for inspection by the
person.
(7) Where:
(a) in accordance with a law of a
State, the Ombudsman of the State delegates to the Commonwealth Ombudsman, either
generally or as otherwise provided by the instrument of delegation, any of his
or her powers under such a law; and
(b) the Minister consents to the
exercise by the Ombudsman in accordance with the instrument of delegation of a
power so delegated;
the Ombudsman is authorized to exercise that power
accordingly.
35
Officers to observe confidentiality
(1) In this section, officer
means:
(a) the Ombudsman;
(b) a Deputy Ombudsman;
(c) a person who is a member of the
staff referred to in subsection 31(1); or
(d) a person, not being a person
referred to in paragraph (b) or (c), to whom the Ombudsman has delegated
any of his or her powers under section 34 or who is an authorized person;
or
(e) a person who is made available to
the Ombudsman as mentioned in subsection 8(12).
(2) Subject to this section, an officer shall
not, either directly or indirectly, and either while he or she is, or after he
or she ceases to be, an officer, make a record of, or divulge or communicate to
any person, any information acquired by him or her by reason of his or her
being an officer, being information that was disclosed or obtained under the
provisions of this Act or under Division 7 of Part V of the Australian
Federal Police Act 1979, including information furnished by the Ombudsman
of a State or information disclosed to or obtained by the Commonwealth
Ombudsman in the exercise of a power of the Ombudsman of a State delegated to
him or her as provided by subsection 34(7).
Penalty: $500.
(3) Subsection (2) does not prevent an
officer:
(a) from making a record of, or
divulging or communicating to any person, information acquired by him or her in
the performance of his or her duties as an officer for purposes connected with
the exercise of the powers and the performance of the functions of the
Ombudsman; or
(b) from divulging or communicating
information to a person:
(i) if the information was
given by an officer of a Department or prescribed authority in the performance
of his or her duties as such an officer—with the consent of the principal
officer of the Department or authority or of the responsible Minister; or
(ia) if the information was
given by a person who is, or is an employee of, a Commonwealth service provider
of a Department or prescribed authority under a contract—with the consent of
the principal officer of the Department or prescribed authority or of the
responsible Minister; or
(ii) if the information was
given by a person otherwise than as set out in subparagraph (i) or
(ia)—with the consent of the person who gave the information.
(4) Subject to subsection (5), subsection (2)
does not prevent the Ombudsman or a Deputy Ombudsman from disclosing, in a
report made under this Act, such matters as, in his or her opinion, ought to be
disclosed in the course of setting out the grounds for the conclusions and
recommendations contained in the report.
(5) Where the Attorney‑General
furnishes to the Ombudsman a certificate in writing certifying that:
(a) the disclosure of information or
documents concerning a specified matter or matters included in a specified
class of matters; or
(b) the disclosure of a specified
document or of documents included in a specified class of documents;
would, for a reason specified in the certificate, being a
reason referred to in paragraph 9(3)(a), (b), (c), (d) or (e), be contrary to
the public interest, an officer shall not, either directly or indirectly and
either while he or she is, or after he or she ceases to be, an officer, except
as provided in subsection (6):
(c) divulge or communicate to any
person any information acquired by him or her under the provisions of this Act
concerning such a matter or such a document;
(d) divulge or communicate any of the
contents of such a document to any person; or
(e) furnish such a document, or a copy
of, or an extract from, such a document, to any person.
Penalty: Imprisonment for 2 years.
(6) Subsection (5) does not prevent an
officer, in the performance of his or her duties as an officer:
(a) from divulging or communicating
information referred to in that subsection to another officer;
(b) from furnishing any of the
contents of, a copy of or an extract from a document referred to in that
subsection to another officer; or
(c) from returning such a document
that has been produced to him or her to the person lawfully entitled to the
custody of the document.
(6A) Subsection (2) does not prevent the
Ombudsman, or an officer acting on behalf of the Ombudsman, from giving
information or documents under paragraph 6(4A)(e) or (4D)(e) or paragraph
6(18)(d).
(7) Subject to subsection (7A), where
the Ombudsman proposes, for purposes connected with the exercise of his or her
powers or performance of his or her functions, to furnish information, or to
send a document, or a copy of, or extract from, a document, to the Ombudsman of
a State, the Ombudsman shall satisfy himself or herself that a law of the State
makes provision corresponding to the provision made by this section with
respect to the confidentiality of information acquired by the Ombudsman of the
State.
(7A) Subsection (7) does not apply in
relation to any information or document obtained by the Ombudsman in the
exercise of a power of the Ombudsman of the State that the Ombudsman was
authorized to exercise in pursuance of subsection 34(7).
(8) A person who is or has been an officer is
not compellable, in any proceedings before a court (whether exercising federal
jurisdiction or not) or before a person authorized by a law of the Commonwealth
or of a State or Territory, or by consent of parties, to hear, receive and
examine evidence, to disclose any information acquired by him or her by reason
of his or her being or having been an officer, being information that was
disclosed or obtained under the provisions of this Act or under Division 7
of Part V of the Australian Federal Police Act 1979.
35AA
Disclosure of information and documents to Integrity Commissioner
(1) This section applies if:
(a) the Ombudsman, of his or her own
motion, investigates any action as mentioned in paragraph 5(1)(b); and
(b) in the course of the
investigation, the Ombudsman obtains information or a document that is, or may
be, relevant to a corruption issue.
(2) Subject to section 35B, nothing in
this Act precludes the Ombudsman from:
(a) disclosing the information; or
(b) making a statement; or
(c) giving the document;
to the Integrity Commissioner.
(3) In this section:
corruption issue has the same meaning as in
the Law Enforcement Integrity Commissioner Act 2006.
Integrity Commissioner has the same meaning as
in the Law Enforcement Integrity Commissioner Act 2006.
35A
Disclosure of information by Ombudsman
(1) Subject to sections 35B and 35C,
nothing in this Act shall be taken to preclude the Ombudsman from disclosing
information, or making a statement, to any person or to the public or a section
of the public with respect to the performance of the functions of, or an
investigation by, the Ombudsman if, in the opinion of the Ombudsman, it is in
the interests of any Department, prescribed authority or person, or is
otherwise in the public interest, so to disclose that information or to make
that statement.
(2) The Ombudsman shall not disclose
information or make a statement under subsection (1) with respect to a
particular investigation where the disclosure of that information, or the
making of that statement, is likely to interfere with the carrying out of that
or any other investigation or the making of a report.
(3) The Ombudsman shall not, in disclosing
information or making a statement under subsection (1) with respect to a
particular investigation:
(a) set out opinions that are, either
expressly or impliedly, critical of a Department, prescribed authority or
person unless the Ombudsman has complied with subsection 8(5) in relation to
the investigation; or
(b) disclose the name of a complainant
or any other matter that would enable a complainant to be identified unless it
is fair and reasonable in all the circumstances to do so.
(3A) If:
(a) the Ombudsman has information
about a particular case manager; and
(b) the information is relevant to the
performance of the functions, or the exercise of the powers, of ESRA; and
(c) in the opinion of the Ombudsman,
it is:
(i) in the interests of
ESRA, the case manager or a complainant; or
(ii) otherwise in the
public interest;
to disclose the information to
ESRA or to make a statement about the information to ESRA;
this Act does not prevent the Ombudsman from disclosing
the information, or making the statement, to ESRA.
(3B) Subsection (3A) does not, by implication,
limit the generality of subsection (1).
(3C) The Ombudsman must not disclose
information, or make a statement about information, under subsection (3A)
if:
(a) the information was obtained in
the course of a particular investigation; and
(b) the disclosure of the information,
or the making of the statement, is likely to interfere with:
(i) the carrying out of
that or any other investigation under this Act; or
(ii) the making of a report
under this Act.
(3D) The Ombudsman must not disclose information,
or make a statement about information, under subsection (3A) if:
(a) the information was obtained as a
result of the making of inquiries under section 7A; and
(b) the disclosure of the information,
or the making of the statement, is likely to interfere with:
(i) the making of those or
any other inquiries under section 7A; or
(ii) the carrying out of an
investigation under this Act; or
(iii) the making of a report
under this Act.
(3E) The Ombudsman must not, in disclosing
information, or making a statement, under subsection (3A):
(a) set out opinions that are, either
expressly or impliedly, critical of a case manager or person unless the
Ombudsman has given the case manager or the person an opportunity to make
submissions, either orally or in writing, in relation to the information or
statement, as the case requires; or
(b) disclose the name of a complainant
or any matter that would enable a complainant to be identified unless it is
fair and reasonable in all the circumstances to do so.
(4) This section has effect notwithstanding
subsection 8(2) and section 35 (other than subsection (5) of that
section).
35B
Disclosure of ACC information
(1) If the Attorney‑General gives the
Ombudsman a certificate certifying that the disclosure of certain ACC
information by one or more listed disclosure methods specified in the
certificate would be contrary to the public interest by reason that it would
prejudice:
(a) the safety of a person; or
(b) the fair trial of a person who has
been, or may be, charged with an offence; or
(c) the proper performance of the
functions of the ACC; or
(d) the operations of a law
enforcement agency;
the Ombudsman must not so disclose the ACC information.
(2) In this section:
ACC information means information or the
contents of a document or a record that is, or was, in the possession or under
the control of the ACC or the Board of the ACC.
listed disclosure method, in relation to
information, a document or a record, means:
(a) including the information or the
contents of the document or record in any report under Division 2 of Part II;
or
(b) giving the information, document
or record to another person or authority under section 6 or 6A; or
(c) giving the information, document
or record to an Ombudsman of a State; or
(d) giving the information, document
or record to an authority with which the Ombudsman has made an arrangement
under section 8B; or
(e) disclosing, or making a statement
that discloses, the information or the contents of the document or record under
subsection 35A(1); or
(f) disclosing information or the
contents of a document or record by any other specified method.
35C
Disclosure of ACLEI information
(1) If the Attorney‑General gives the
Ombudsman a certificate certifying that the disclosure of certain ACLEI
information by one or more listed disclosure methods specified in the
certificate would be contrary to the public interest by reason that it would
prejudice:
(a) the safety of a person; or
(b) the fair trial of a person who has
been, or may be, charged with an offence; or
(c) the proper performance of the
functions of the Integrity Commissioner; or
(d) the operations of a law
enforcement agency;
the Ombudsman must not so disclose the ACLEI information.
(2) In this section:
ACLEI information means information or the
contents of a document that is, or was, in the possession or under the control
of the Integrity Commissioner.
listed disclosure method, in relation to
information, a document or a record, means:
(a) including the information or the
contents of the document or record in any report under Division 2 of Part 2;
or
(b) giving the information, document
or record to another person or authority under section 6 or 6A; or
(c) giving the information, document
or record to an Ombudsman of a State; or
(d) giving the information, document
or record to an authority with which the Ombudsman has made an arrangement
under section 8B; or
(e) disclosing, or making a statement
that discloses, the information or the contents of the document or record under
subsection 35A(1); or
(f) disclosing information or the
contents of a document or record by any other specified method.
36
Offences
(1) A person shall not refuse or fail:
(a) to attend before the Ombudsman;
(b) to be sworn or make an
affirmation;
(ba) to furnish information; or
(c) to answer a question or produce a
document or record;
when so required in pursuance of this Act.
Penalty: $1,000 or imprisonment for 3 months.
(2A) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(3) A reference in this section to the
Ombudsman includes a reference to a Deputy Ombudsman.
37
Protection from civil actions
Civil proceedings do not lie against a
person in respect of loss, damage or injury of any kind suffered by another
person by reason of any of the following acts done in good faith:
(a) the making of a complaint to the
Ombudsman under this Act;
(b) the making of a statement to, or
the furnishing of a document or information to, a person, being an officer
within the meaning of section 35, for the purposes of this Act, whether or
not the statement was made, or the document or information was furnished, in
pursuance of a requirement under section 9 or an order under section 11A.
38
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters that are
required or permitted by this Act to be prescribed or are necessary or
convenient to be prescribed for carrying out or giving effect to this Act and,
in particular, prescribing matters in connexion with fees and expenses of
witnesses appearing before the Ombudsman.