HomeFund Commissioner Act 1993 No 9
Current version for 1 July 2010 to date (accessed 21 December 2014 at 16:27)
Part 4

Part 4 Complaints

Division 1 Complaints generally

10   Right to complain

(1)  A HomeFund borrower may complain to the Commissioner about the promotion of, negotiations for, entering of, terms of, or administration or enforcement of, the HomeFund mortgage to which the borrower is or was a party.
(2)  Complaints must be made before 31 March 1994. However, the Commissioner has a discretion to accept a complaint after that date.
(3)  A complaint may be in writing or verbal, but the Commissioner may require a verbal complaint to be reduced to writing.
(4)  The Commissioner may require information about a complaint to be provided by the complainant in a particular manner or form, and may require a complaint to be verified by statutory declaration.
(5)  No fee is payable for making a complaint to the Commissioner.
(6)  The Commissioner may agree to the amendment or withdrawal of a complaint.
(7)  The Commissioner may treat a complaint as consisting of two or more separate complaints.

11   Preliminary assessment

The Commissioner may conduct a preliminary assessment of a complaint, for the purpose of deciding whether to exercise any other functions under this Act in relation to the complaint.

Division 2 Dealing with and investigating complaints

12   Investigations

(1)  The Commissioner may investigate a complaint or may choose not to do so.
(2)  The Commissioner may discontinue an investigation.
(2A)  The Commissioner may, at any time, recontinue an investigation that has been discontinued.
(3)  In deciding whether to investigate a complaint or whether to discontinue an investigation, the Commissioner may have regard to such matters as the Commissioner thinks fit, and without limitation may have regard to whether in the Commissioner’s opinion:
(a)  the complaint is frivolous, vexatious or not in good faith, or
(b)  the subject-matter of the complaint is trivial, or
(c)  there is available to the complainant an alternative, satisfactory and readily available means of redress, or
(d)  the complainant has no interest or an insufficient interest in the subject-matter of the complaint, or
(e)  the complainant does not have an entitlement to a legal remedy, or
(f)  the conduct of the complainant does not warrant the matter to be pursued by the Commissioner.

13   Reasons for refusal or discontinuance of investigation

If a complaint has been made to the Commissioner and the Commissioner:
(a)  refuses to investigate the complaint, or
(b)  discontinues an investigation of the complaint,
the Commissioner is required to inform the complainant in writing of the decision and the reasons for the decision.

14   Notice of investigation

(1)  The Commissioner is required to give notice of an investigation to the complainant and (so far as practicable) to such other persons as appear to be materially involved in the subject-matter of the complaint.
(2)  The notice must be in writing and describe the subject-matter of the complaint.

15   Privacy

An investigation is to be conducted in the absence of the public.

16   Information to be given

(1)  For the purposes of a preliminary assessment or an investigation, the Commissioner may require any person:
(a)  to give the Commissioner a statement of information, or
(b)  to produce to the Commissioner any document or other thing, or
(c)  to give the Commissioner 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 place for compliance.
(3)  (Repealed)

17   Inquiries

(1)  The Commissioner, in the course of an investigation, may make or hold inquiries.
(2)  For the purposes of any inquiry under this section, the Commissioner 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 Commissioner in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act has effect subject to section 19 of this Act.

18   Entry on premises etc

The Commissioner may, in the course of an investigation:
(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.

19   Limits on secrecy and privilege (information and inquiries)

(1)  This section applies where the Commissioner requires any person under section 16 or 17:
(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 Commissioner must set aside the requirement if it appears to the Commissioner 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 Commissioner that the person consents to compliance with the requirement.
(3)  The person must however comply with the requirement despite:
(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 authority could have claimed in a court of law, or
(c)  any duty of secrecy or other restriction on disclosure applying to a public authority.

20   Limits on secrecy and privilege (entry of premises)

(1)  This section applies to the powers of entry and inspection conferred by section 18.
(2)  The powers are not to be exercised if it appears to the Commissioner 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 production of the document or thing and it does not appear to the Commissioner that the person consents to the inspection or production.
(3)  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 to production of the document or thing on grounds of public interest, or
(b)  any privilege of a public authority, or
(c)  any duty of secrecy or other restriction on disclosure applying to a public authority.

21   Cabinet information and proceedings

(1)  This Act does not enable the Commissioner:
(a)  to require any person:
(i)  to give any statement of information, or
(ii)  to produce any document or other thing, or
(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)  any information, document, thing or question relates to confidential proceedings of Cabinet or of a committee of Cabinet, or
(b)  information is Cabinet information,
is conclusive of that fact.

22   Submissions

(1)  The Commissioner must give an opportunity to make submissions on the subject-matter of the complaint the subject of the investigation to any person given notice under section 14.
(2)  The Commissioner may determine the mode in which a person is to be given an opportunity to make any such submissions, the manner and period in which any such submissions must be made, and the scope of any such submissions.

Division 3 General provisions

23   Representation

(1)  A person is not entitled to be represented by another person before the Commissioner (whether at an inquiry or otherwise) without the leave of the Commissioner.
(2)  Leave is not to be given under this section for a person to be represented by an Australian legal practitioner unless the Commissioner is satisfied that leave should be given in the special circumstances of the case.
(3)  The Commissioner may allow any person appearing before the Commissioner the services of an interpreter.

24   General procedure

(1)  Subject to this Act, the Commissioner:
(a)  may determine the procedures to be followed in exercising functions under this Act, including the procedures to be followed at an inquiry (if one is to be held), and
(b)  is to act as quickly as is practicable in the circumstances, and
(c)  is to act in an informal manner (including avoiding conducting formal hearings) as far as possible, and
(d)  is not bound by the rules of evidence and may inform himself or herself on any matter in any way that he or she considers to be just, and
(e)  is to act according to the substantial merits of the case without undue regard to technicalities.
(2)  The Commissioner may form views on and decide any matter on the information before the Commissioner, without being required to seek the giving of evidence.
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