Part 3 Investigations and conciliations
(1) Subject to this section, any person (including a public authority) may complain to the Ombudsman about the conduct of a public authority unless:(a) the conduct is of a class described in Schedule 1,(b) the conduct took place more than twelve months before the date of assent to this Act,(c) the conduct took place during the period of twelve months that last preceded the date of assent to this Act and the complaint was made more than twelve months after the appointed day, or(d) the conduct, being conduct of a local government authority, took place before the day appointed and notified under section 2 (2) of the Ombudsman (Amendment) Act 1976.(2) Where a person wishes to make a complaint under subsection (1), the complaint may, with the consent of that person, be made on his or her behalf by a member of Parliament.(3) Where a person is detained by, or in the custody of, a public authority and informs the public authority or another person having superintendence over him or her that he or she wishes to make a complaint to the Ombudsman, the public authority or other person so informed shall:(a) take all steps necessary to facilitate the making of the complaint, and(b) send immediately to the Ombudsman, unopened, any written matter addressed to the Ombudsman.(4) A complaint under subsection (1), and a consent for the purposes of subsection (2), must be in writing.(4A) However, the Ombudsman:(a) may accept a complaint that is not in writing if the Ombudsman considers it appropriate to do so, and(b) in that event, must reduce the complaint to writing as soon as practicable.(5) Where a member of Parliament acts for a person under subsection (2) the member does not, except for the purposes of sections 15, 16, 26 (4) and 29, thereby become the complainant.(6) Where a member of Parliament publishes to a person for whom the member acts under subsection (2) any matter, or a copy of any matter, published to the member by the Ombudsman, the publication has, for all purposes, the same effect as if it had been published to that person by the Ombudsman.
(1) Where it appears to the Ombudsman that any conduct of a public authority about which a complaint may be made under section 12 may be conduct referred to in section 26, the Ombudsman may, whether or not any person has complained to the Ombudsman about the conduct, make the conduct the subject of an investigation under this Act.(2) Subsection (1) has effect notwithstanding anything in any Act passed before the passing of this Act.(3) The Ombudsman may discontinue an investigation under this Act.(4) Where any person has complained to the Ombudsman under section 12 about the conduct of a public authority, the Ombudsman, in deciding whether to make that conduct the subject of an investigation under this Act or whether to discontinue an investigation commenced by him or her under this Act:(a) may have regard to such matters as he or she thinks fit, and(b) without limiting paragraph (a), may have regard to whether, in his or her opinion:(i) the complaint is frivolous, vexatious or not in good faith,(ii) the subject-matter of the complaint is trivial,(iii) the subject-matter of the complaint relates to the discharge by a public authority of a function which is substantially a trading or commercial function,(iv) the conduct complained of occurred at too remote a time to justify investigation,(v) in relation to the conduct complained of there is or was available to the complainant an alternative and satisfactory means of redress, or(vi) the complainant has no interest or an insufficient interest in the conduct complained of.(4A) In deciding whether to discontinue an investigation of police conduct, the Ombudsman shall have regard to the public interest.(5) Notwithstanding any other provision of this section, the Ombudsman shall not investigate the conduct of a public authority, being a local government authority, if that conduct is subject to a right of appeal or review conferred by or under an Act unless the Ombudsman is of the opinion that special circumstances make it unreasonable to expect that right to be or to have been exercised.
(1) The Ombudsman may make preliminary inquiries for the purpose of deciding whether to make particular conduct of a public authority the subject of an investigation under this Act.(2) The inquiries may be made whether or not any person has complained to the Ombudsman about the conduct under section 12.(3) If a complaint has been made under section 12 (whether in writing or otherwise), the Ombudsman may, by way of a preliminary inquiry with respect to the complaint, require the complainant to provide further written particulars of the complaint within the time specified by the Ombudsman.
13A Dealing with complaint by conciliation
(1) The Ombudsman may, at any time, decide to attempt to deal with a complaint by conciliation under this section.(2) The conciliator in any conciliation under this section is to be the Ombudsman or an officer of the Ombudsman. However, the conciliator may, with the agreement of the complainant, arrange for a mediator to assist in the conciliation.(3) Participation in the conciliation by the parties to a complaint is voluntary, and either party may withdraw at any time. The conciliator may also terminate the attempt at conciliation at any time.(4) Evidence of anything said or admitted during the conciliation (or attempted conciliation) and any document prepared for the purposes of any such conciliation are not admissible:(a) in any subsequent investigation, under this Part, of the complaint concerned (unless the person who said or admitted the thing, or to whom the document relates, consents to its admission), or(b) in any proceedings in a court or before a person or body authorised to hear and receive evidence.(5) If an attempt to deal with a complaint by conciliation under this section is unsuccessful, the complaint is to be treated under this Part as if the attempted conciliation had not taken place. However, the conciliator is excluded from participating as an investigating officer in any investigation of the complaint.(6) Nothing in this section prevents a complaint from being dealt with otherwise than in accordance with this section.
(1) The Governor may, by proclamation published on the NSW legislation website, amend Schedule 1 so as to add to it, or to omit from it, any class of conduct of a public authority.(2) Where Schedule 1 is amended by adding to it any class of conduct of a public authority, and conduct the subject of an investigation or conciliation by the Ombudsman is or includes conduct of the added class, the Ombudsman shall discontinue the investigation or conciliation in so far as it relates to conduct of the added class and shall not make any report concerning conduct of the added class.(3) A proclamation under subsection (1):(a) takes effect from the date of the publication of the proclamation or a later date specified in the proclamation, and(b) shall be laid before each House of Parliament within fourteen sitting days of that House after the date of proclamation.(4) If either House of Parliament passes a resolution, of which notice has been given within fifteen sitting days of that House after a proclamation has been laid before it, disallowing the proclamation or any part thereof, the amendment of Schedule 1 made by the proclamation or part thereupon ceases to have effect.(5) For the purposes of subsections (3) and (4) sitting days shall be counted, whether or not they occur during the same session.(6) Where, by the operation of subsection (4), an amendment of Schedule 1 ceases to have effect, the Ombudsman may:(a) resume any investigation or conciliation that he or she discontinued under subsection (2) by reason of the amendment, and(b) make a report concerning the conduct to which the resumed investigation relates.
15 Reasons for refusal to conciliate, investigate or continue investigation
(1) Where:(a) a complaint has been made to the Ombudsman under section 12 about the conduct of a public authority, and(b) the Ombudsman:the Ombudsman shall inform the complainant in writing of his or her decision and the reasons for the decision.(i) refuses to investigate the conduct complained of or to deal with the complaint by conciliation, or(ii) discontinues an investigation of that conduct,(2) Where the Ombudsman discontinues an investigation of police conduct, the Ombudsman shall inform the complainant and the Commissioner of Police in writing of the decision and the reasons for the decision.(3) Where the Ombudsman:(a) refuses to carry out any other investigation, or(b) refuses to deal with any other complaint, disclosure or allegation by conciliation, or(c) discontinues any other investigation,the Ombudsman must inform the complainant, or the person who made the disclosure or allegation, in writing of the decision and the reasons for the decision.
(1) Upon the Ombudsman deciding to make the conduct or police conduct of a public authority the subject of an investigation under this Act, the Ombudsman shall give notice of the decision:(a) where there is a complainant, to the complainant,(b) to the head of the public authority and, if practicable, to the public authority, and(c) as prescribed.(2) A notice under this section must be in writing, must describe the conduct or police conduct the subject of the investigation and must, so far as practicable, identify the public authority.
An investigation under this Act shall be made in the absence of the public.
18 Public authority to give information etc
(1) For the purposes of an investigation under this Act, the Ombudsman may require a public authority:(a) to give the Ombudsman a statement of information,(b) to produce to the Ombudsman any document or other thing, or(c) to give the Ombudsman a copy of any document.(2) A requirement under this section must be in writing, must specify or describe the information, document or thing required, and must fix a time and specify a place for compliance.
(1) In an investigation under this Act, the Ombudsman may make or hold inquiries.(2) For the purposes of any inquiry under this section, the Ombudsman has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before the Ombudsman in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act shall have effect subject to section 21 of this Act.(3) A witness appearing before the Ombudsman is to be paid such amount as the Ombudsman determines, but not exceeding the amount that would be payable to such a witness if he or she were a Crown witness subpoenaed by the Crown to give evidence.(4) The Ombudsman may appoint an Australian legal practitioner to assist the Ombudsman for the purposes of an inquiry held by the Ombudsman and the Australian legal practitioner may appear before the inquiry.
19A Restriction on publication of evidence
(1) Direction regarding publication
The Ombudsman may direct that:(a) any evidence given before an inquiry held by the Ombudsman, or(b) the contents of any document, or a description of any thing, produced to the Ombudsman, or(c) any information that might enable a person who has given or may be about to give evidence before an inquiry to be identified or located, or(d) the fact that any person has given or may be about to give evidence before an inquiry,must not be published, or must not be published except in such manner, and to such persons, as the Ombudsman specifies.(2) Public interest
The Ombudsman is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest.(3) Offence
A person must not make a publication in contravention of a direction given under this section.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(4) Definition
In this section and sections 19B and 19C, inquiry means an inquiry held under section 19.
19B Publication of evidence given at inquiry
(1) A person who was present at an inquiry must not publish, or permit to be published, any evidence given before the inquiry or any of the contents of a document produced at the inquiry, except to the Ombudsman, an officer of the Ombudsman or an Australian legal practitioner appointed under section 19 (4) or as permitted by the Ombudsman or the regulations.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Nothing in this section affects section 19A, but a person cannot be punished under both sections for the same publication.(3) This section does not apply to an officer of the Ombudsman or an Australian legal practitioner appointed under section 19 (4).
19C Disclosures prejudicing investigations
(1) A person who is required by the Ombudsman by a summons issued under section 19 (2) to give evidence or to produce a document or other thing must not disclose any information about the summons that is likely to prejudice the investigation to which it relates.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Subsection (1) does not apply to a summons unless it specifies that information about the summons must not be disclosed.(3) A person does not contravene this section if:(a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the summons and the employee, agent or other person is directed not to inform the person to whom the information relates about the matter, or(b) the disclosure is made to obtain legal advice or representation in relation to the summons, or(c) the disclosure is made for the purposes of, or in the course of, legal proceedings, or(d) the disclosure is made in accordance with guidelines issued by the Ombudsman or in accordance with the regulations.(4) A reference in this section to the disclosure of any information about a summons includes a reference to:(a) a disclosure about the existence or nature of the summons or of the investigation to which it relates, and(b) a disclosure of any information to a person from which the person could reasonably be expected to infer the existence or nature of the summons or of the investigation to which it relates.
In an investigation under this Act, the Ombudsman may, at any time:(a) enter and inspect any premises occupied or used by a public authority as a public authority, and(b) inspect any document or thing in or on the premises.
21 Limits on secrecy and privilege
(1) This section applies if, in an investigation under this Act or an inquiry under section 19, the Ombudsman requires any person:(a) to give any statement of information, or(b) to produce any document or other thing, or(c) to give a copy of any document, or(d) to answer any question.(2) The Ombudsman must set aside the requirement if it appears to the Ombudsman that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the Ombudsman that that person consents to compliance with the requirement.(3) The requirement may however be made despite, and is not required to be set aside because of:(a) any rule of law which, in proceedings in a court of law, might justify an objection to compliance with a like requirement on grounds of public interest, or(b) any privilege of a public authority which the public authority might claim in a court of law, or(c) any duty of secrecy or other restriction on disclosure applying to a public authority.
21A Privilege as regards entry and inspections on public premises
(1) The Ombudsman must not exercise powers under section 20 if it appears to the Ombudsman that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist inspection of the premises or document or thing or production of the document or thing and it does not appear to the Ombudsman that that person consents to the inspection or production.(2) The powers may however be exercised despite:(a) any rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or document or thing or to production of the document or thing on grounds of public interest, or(b) any privilege of a public authority which the public authority might claim in a court of law, or(c) any duty of secrecy or other restriction on disclosure applying to a public authority.
(1) The Supreme Court may, on an application made by the Ombudsman, grant an injunction restraining any conduct in which a public authority is engaging or in which a public authority appears likely to engage, where that conduct is the subject of, or affects the subject of, an investigation or proposed investigation by the Ombudsman.(2) The Supreme Court shall not grant an application under subsection (1) unless it is of the opinion that the conduct sought to be restrained is likely to prejudice or negate the effect or implementation of a recommendation which the Ombudsman might make pursuant to section 26 (2) were the Ombudsman to find that the conduct or part of the conduct, the subject of the investigation referred to in subsection (1), was conduct referred to in section 26.(3) The Ombudsman shall not be required, as a condition for the granting of an injunction pursuant to an application referred to in subsection (1), to give any undertaking as to damages.
22 Cabinet information and proceedings
(1) This Act does not enable the Ombudsman:(a) to require any person:(i) to give any statement of information,(ii) to produce any document or other thing,(iii) to give a copy of any document, or(iv) to answer any question,which relates to information that is Cabinet information under the Government Information (Public Access) Act 2009 or to confidential proceedings of Cabinet or any committee of Cabinet, or(b) to inspect any document or thing which so relates.(2) For the purposes of this section, a certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that:(a) information is Cabinet information under the Government Information (Public Access) Act 2009, or(b) any information, document, thing or question relates to confidential proceedings of Cabinet or of a committee of Cabinet,is conclusive of that fact.
For the purposes of the exercise of any of the Ombudsman’s functions, the Ombudsman may engage the services of any person for the purpose of getting expert assistance.
(1) In an investigation under this Act, the Ombudsman shall give an opportunity to make submissions on the conduct or police conduct the subject of the investigation:(a) if practicable, to the public authority whose conduct or police conduct it is, and(b) to any other person given notice under section 16.(2) Where, in an investigation under this Act, the Ombudsman considers that there are grounds for adverse comment in respect of any person, the Ombudsman, before making any such comment in any report, shall, so far as practicable:(a) inform that person of the substance of the grounds of the adverse comment, and(b) give the person an opportunity to make submissions.(3) Subsection (2) does not apply in relation to a report under section 28.
25 Consultation with responsible Minister
(1) In an investigation under this Act, the Ombudsman shall, on request by the responsible Minister, consult that Minister on the conduct or police conduct the subject of the investigation.(2) Before publishing a report under section 26, the Ombudsman:(a) shall inform the responsible Minister that he or she proposes to publish such a report, and(b) shall, on request by that Minister, consult that Minister.