Federal Register of Legislation - Australian Government

Primary content

Ombudsman Act 2012 (NI)

  • Act Applied Law - C2015Q00030
  • No longer in force
  • View Series
Act No. 5, 2012
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Amendment Ordinance 2015
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure and Regional Development
General Comments: This Act was repealed on 1 July 2016 by the Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended by the Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016 (No. 5, 2016) (see F2016C00715).
Registered 27 Oct 2015
Start Date 18 Jun 2015
End Date 01 Jul 2016
Date of repeal 01 Jul 2016
Repealed by Norfolk Island Continued Laws Amendment Ordinance 2015
Table of contents.

 

NORFOLK                            ISLAND

 

Ombudsman Act 2012

No. 5, 2012

Compilation No. 1

Compilation date:                              18 June 2015

Includes amendments up to:            Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)

Prepared Date:                                   14 September 2015

 

 

 

 

 

 

 

 

 

 

 


 

 

NORFOLK                            ISLAND

 

 

Ombudsman ACT 2012

 

TABLE OF PROVISIONS

Section

Part 1—Preliminary........................................................................................................................... 1

1.     Short title...................................................................................... 1

2.     Commencement............................................................................ 1

3.     Interpretation................................................................................ 1

Part 2—Establishment, Functions, Powers and Duties of the Ombudsman............................... 4

Division 1—Establishment and Functions............................................................................ 4

4.     Establishment of office of Ombudsman and Deputy Ombudsman 4

5.     Functions...................................................................................... 5

6.     Discretion not to investigate certain complaints............................ 6

6A. Transfer of complaints to Information Commissioner.................. 8

6B.   Preliminary inquiries..................................................................... 8

6C.   Executive and Ministerial matters must not be investigated.......... 8

7.     Complaints................................................................................... 8

7A. The Commonwealth Minister and Legislative Assembly reference of

matter for investigation......................................................................... 8

8.     Complaints Officer....................................................................... 9

9.     Investigations.............................................................................. 10

9A. Protection of persons providing information................................ 8

10.   Power to obtain information and documents.............................. 12

11.   Unreasonable delay in exercising power..................................... 14

12.   Powers of Supreme Court........................................................... 15

13.   Complainant and agency to be informed.................................... 15

14.   Power to examine witnesses....................................................... 16

15.   Power to enter premises.............................................................. 16

Division 2—Reports................................................................................................................. 16

16.   Reports by Ombudsman............................................................. 16

17.   Special reports to Minister.......................................................... 18

18.   Special reports to Legislative Assembly...................................... 18

19.   Annual reports to the Legislative Assembly................................ 18

Part 3—Conditions of Service, and Staff, of the Ombudsman.................................................... 18

Division 1—Ombudsman......................................................................................................... 18

20.   Interpretation.............................................................................. 18

21.   Appointment of Ombudsman..................................................... 19

22.   Tenure of office......................................................................... 19

23.   Salary and allowances................................................................ 19

24.   Leave of absence........................................................................ 19

25.   Resignation................................................................................. 19

26.   Retirement.................................................................................. 19

27.   Suspension and removal of Ombudsman................................... 19

28.   Acting appointments................................................................... 20

Division 2—Staff...................................................................................................................... 20

29.   Staff........................................................................................... 20

Division 3—Arrangement with Commonwealth................................................................. 20

29A.    Arrangement relating to Commonwealth Ombudsman............ 20

Part 4—Miscellaneous...................................................................................................................... 21

30.   Ombudsman not to be sued........................................................ 21

31.   Delegation.................................................................................. 21

32.   Officers to observe confidentiality............................................. 21

33.   Disclosure of information by Ombudsman................................. 22

34.   Offences..................................................................................... 23

35.   Protection from civil actions....................................................... 23

36.   Determination of fees and expenses of witnesses....................... 23

37.   Regulations................................................................................. 23

 


 

 

 

 

NORFOLK                            ISLAND

 

 

 

 

OMBUDSMAN ACT 2012

 

An Act to provide for the appointment of an Ombudsman and to define the functions and powers of that office.

BE IT ENACTED by the Legislative Assembly of Norfolk Island as follows:

Part 1—Preliminary

1.   Short title

      This Act may be cited as the Ombudsman Act 2012.

2.   Commencement

      (1)        This Part commences on the day on which notification of assent to this Act is published in the Gazette.

      (2)        The remaining provisions of this Act commence on a day or days to be fixed by the Administrator by notice in the Gazette.

3.  Interpretation

      (1)        In this Act, unless the contrary intention appears—

“Administration company” means an Administration company as defined in the Companies Act 1985;

“agency” means the public service or a prescribed authority;

“authorised person” means a person appointed by the Ombudsman to be an authorised person for the purposes of this Act;

“Commonwealth Minister” means the Minister responsible for the Norfolk Island Act 1979 (Commonwealth);

“Complaints Officer” has the meaning given by section 8;

“Minister” has the same meaning as in the Norfolk Island Act 1979 (Commonwealth);

“officer” means—

      (a)        in relation to the public service—

                  (i)         a public sector employee; or

                  (ii)        any other person (not being a Minister) authorised to exercise powers or perform functions on behalf of the public service; and

      (b)        in relation to a prescribed authority—

                  (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 the person is employed by the authority; or

 

 

                  (iv)       a person authorised by the authority to exercise any powers or perform any functions of the authority on behalf of the authority;

“Police Force” means the Police Force of Norfolk Island under the Police Act 1931;

“prescribed authority” means—

      (a)        a body corporate that is established by or under an enactment (including the Companies Act 1985) and —

                  (i)         is comprised of persons, or has a governing body comprised of persons, a majority of whom are or were appointed by or on behalf of the Crown, the Administration or the Legislative Assembly; or

                  (ii)        is subject to direction or control by a Minister;

                  but does not include the public service;

      (b)        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)         a corporation established or registered under the Companies Act 1985 or the Associations Incorporation Act 2005; or

                  (ii)        a body that, under subsection (2) or the Regulations, is not a prescribed authority for the purposes of this Act;

      (c)        any other body, whether incorporated or unincorporated, over which the Administration is in a position to exercise control that is declared by the Regulations to be a prescribed authority for the purposes of this Act;

      (d)        subject to paragraph (c), the person holding, or performing the duties of, an office or position, established by enactment;

      (e)        a person holding, or performing the duties of, an office or position created otherwise than under an enactment that is declared by the Regulations to be an office or position the holder of which is a prescribed authority for the purposes of this Act; or

      (f)        an Administration company or a subsidiary thereof;

“principal officer” means—

      (a)        in relation to the public service—the Chief Executive Officer ; or

      (b)        in relation to a prescribed authority—

                  (i)         if the Regulations declare an office or position to be the principal office in respect of the authority—the person holding, or performing the duties of, that office or position;

                  (ii)        in the case of an Administration company or a subsidiary—the Chief Executive Officer of the corporation or subsidiary or if there is none, the Chairman of the Board of Directors; or

                  (iii)       in any other case—the person who constitutes that authority or a person acting in his or her office or position 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 the person is present or a person acting in his or her office or position;

“public sector employee” means a public sector employee as defined in the Public Sector Management Act 2000;

“public service” means the public service as defined in the Public Sector Management Act 2000;

“responsible Minister”, in relation to an agency, means—

      (a)        subject to paragraphs (b) and (c), the Minister who is responsible for that agency;

 

      (b)        in relation to a prescribed authority referred to in paragraph (d) of the definition of “prescribed authority”— the Minister administering the enactment concerned; or

      (c)        in relation to a prescribed authority referred to in paragraph (c) or (e) of the definition of “prescribed authority”— 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 the Minister.

      (2)        An unincorporated body, being a board, council, committee, subcommittee or other body established by or under an enactment for the purpose of assisting, or performing functions connected with, an agency shall not be taken to be an agency, but action taken by the body, or by a person on its behalf, shall be taken to have been taken by that agency.

      (3)        A person shall not be taken to be a prescribed authority only because the person holds or performs the duties of—

      (a)        an office or position referred in paragraph (e) of the definition of “prescribed authority”;

      (b)        an office the duties of which the person performs as duties of his or her employment as an officer of an agency;

      (c)        an office or member of a body; or

   (d)        an office or position 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 or position shall be deemed to have been taken by the agency or body concerned.

      (4)        Where—

      (a)        a person who is not an officer of an agency for the purposes of this Act takes action in the exercise of a power or the performance of a function that the person is authorised to exercise or to perform because the person holds an appointment made by, or because of authority given by, the Administrator, a Minister or a principal officer of an agency; and

      (b)        the person does not exercise the power or perform the function because the person holds, or performs the duties of, an office established by or under an enactment or because of being a judge or a magistrate;

the action shall be deemed to be taken, for the purposes of this Act, by the agency responsible for dealing with the matter in connection with which the action is taken.

      (5)        For the purposes of this Act, action that is taken by an officer of an agency shall be deemed to be taken by the agency—

      (a)        if the officer takes, or purports to take, the action because of being such an officer, whether or not—

                  (i)         the action is taken in connection with, or as incidental to, the performance of the functions of the agency; 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 the officer by an enactment.

      (6)        Notwithstanding subsection (5), where the Regulations provide that the person holding, or performing the duties of, an office or position established by an enactment is not a prescribed authority for the purposes of this Act, the Regulations may also provide that action taken by an officer of an agency being action in the furtherance of the duties of that office or position, shall, for the purposes of this Act, be deemed not to be action taken by that agency.

      (7)        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 because of being an officer of the authority, whether or not—

                  (i)         the action is taken for or in connection 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 the officer by an enactment.

      (8)        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 action, to make a decision or recommendation or to formulate a proposal.

      (9)        For the purposes of this Act, the Police Force shall be deemed to be a prescribed authority.

      (10)      For the purposes of this Act, references to an officer of a prescribed authority shall be read as references to a member of the Police Force.

      (11)      The Minister may, in consultation with the Ombudsman, by instrument published in the Gazette determine standards to be implemented by agencies for the handling of complaints.

Part 2—Establishment, Functions, Powers and Duties of the Ombudsman

Division 1—Establishment and Functions

4.   Establishment of office of Ombudsman and Deputy Ombudsman

      (1)        For the purposes of this Act, there shall be:

      (a)        an Ombudsman; and

      (b)        a Deputy Ombudsman.

      (2)        The functions of the Ombudsman are to investigate complaints made under this Act and to perform such other functions as are conferred by this Act or by any other Act.

      (3)        Unless otherwise provided expressly, or by necessary implication, references in this or any other Act to the Ombudsman include the Deputy Ombudsman.


5.   Functions

      (1)        Subject to this Act, the Ombudsman—

      (a)        shall investigate action that relates to a matter of administration, being action taken after the commencement of this Act by an agency and in respect of which a complaint has been made to the Ombudsman;

      (b)        may, of his or her own motion, investigate action of that kind; and

      (c)        shall inspect the records of the Complaints Officer in accordance with section 8.

      (2)        The Ombudsman is not authorised to investigate—

      (a)        action taken by a member of the Legislative Assembly in his or her capacity as such member or of a Minister in his or her capacity as a Minister;

      (b)        action taken by—

                  (i)         a Judge; or

                  (ii)        a magistrate or coroner or member of a tribunal; or

                  (iii)       the Registrar or a Deputy Registrar of the Supreme Court or Clerk of the Court of Petty Sessions when performing a function of a judicial nature

that is related to the hearing or disposition of a matter before that or another court or tribunal;

      (c)        actions that have been the subject of an application by any person to a court or tribunal unless the Ombudsman considers there are special reasons that justify an investigation;

      (d)        action taken by a Royal Commission;

      (e)        action taken by a law officer of the Administration or a police officer in determining whether or not to bring proceedings of a criminal nature against a person or actions in the conduct of such proceedings including a decision to file a nolle prosequi;

      (f)        action taken by the Chief Executive Officer with respect to persons employed in the public service or the service of a prescribed authority, being action taken in relation to the employment of those persons, including action taken with respect to the promotion, termination of appointment or discipline of, or the payment of remuneration to, those persons;

      (g)        action taken by an agency 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 public service or an office or position in the service of a prescribed authority; or

      (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.

      (4)        For the purposes of subsection (3), action shall be deemed to have been taken by a delegate of a Minister notwithstanding that the action is taken under a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister.

      (5)        For the purposes of the application of this Act in relation to the Ombudsman, action taken by an agency shall not be regarded as having been taken by a Minister only because the action was taken by the agency in relation to action taken or to be taken by a Minister personally.

      (6)        The Ombudsman shall exercise such other powers and functions as may be conferred by another enactment provided that no such other powers and functions shall be exercised if the enactment by which they are conferred results or may result in the imposition of a financial cost to the Commonwealth to which the Commonwealth Minister has not agreed.


6.   Discretion not to investigate certain complaints

      (1)        Where a complaint has been made to the Ombudsman with respect to action taken by an agency, the Ombudsman may, in his or her discretion, decide not to investigate the action or, if investigation has commenced, 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.

      (2)        Where a person who makes a complaint to the Ombudsman with respect to action taken by an agency has not complained to the Complaints Officer, 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 Complaints Officer.

(3)        Where a person who makes a complaint to the Ombudsman with respect to action taken by an agency has complained to the Complaints Officer with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action unless and until the complainant has informed 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.

      (4)        Where—

      (a)        a person who has made a complaint to the Ombudsman with respect to action taken by an agency and who has complained to the agency with respect to that action informs the Ombudsman as provided by subsection (3) that no redress, or no adequate redress, has been granted by the agency; and

      (b)        the Ombudsman is of the opinion—

                  (i)         if no redress has been granted—that, since the complainant complained to the agency, 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.

      (5)        Where a complainant has caused or causes 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 must not investigate, or continue to investigate, the action unless the Ombudsman is of the opinion that there are special reasons justifying the investigation or the continued investigation.

      (6)        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, 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.


      (7)        Where, before the Ombudsman commences, or after the Ombudsman has commenced, to investigate action taken by an agency, being action that is the subject matter of a complaint, the Ombudsman forms the opinion that adequate provision is made under an administrative practice for the review of action of that kind, 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.

      (8)        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.

      (9)        If the Ombudsman forms the opinion that action in respect of which a complaint has been made relates to a commercial activity of an agency, the Ombudsman may decide not to investigate the complaint, or to cease investigating the complaint, as the case may be.

6A.    Transfer of complaints to Information Commissioner

      (1)        This section applies if the Ombudsman is satisfied of either of the following—

      (a)        that—

                  (i)         a complainant has complained, or could complain, to the Information Commissioner about an action taken by an agency under the Privacy Act 1988 (Commonwealth) or the Freedom of Information Act 1982 (Commonwealth) or both; and

                  (ii)        the action could be more appropriately or effectively dealt with by the Information Commissioner;

      (b)        a complaint about an action taken by a Department or prescribed authority has been the subject of a completed investigation by the Information Commissioner under the Privacy Act 1988 (Commonwealth) or the Freedom of Information Act 1982 (Commonwealth).

      (2)        The Ombudsman—

      (a)        must consult the Information Commissioner about the complaint with a view to avoid inquiries being conducted into that matter by both the Information Commissioner and the Ombudsman; and

      (b)        may decide not to investigate the action, or not to continue to investigate the action.

      (3)        If the Ombudsman decides not to investigate, or not to continue to investigate, an action under paragraph (2)(b), the Ombudsman must—

      (a)        transfer the complaint to the Information Commissioner; and

      (b)        notify the complainant in writing that the complaint has been transferred; and

      (c)        give the Information Commissioner any information or documents that relate to the complaint in the possession, or under the control of, the Ombudsman.

      (4)        A complaint transferred under subsection (3) is taken to be a complaint made to the Information Commissioner under the Privacy Act 1988 (Commonwealth) or the Freedom of Information Act 1982 (Commonwealth) as the case requires.

6B.    Preliminary inquiries

      (1)        Where a complaint has been made to the Ombudsman with respect to action taken by an agency 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 authorised to investigate the action; or

      (b)        if the Ombudsman is authorised 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 agency or, with the agreement of the principal officer, of another officer of the agency.

      (2)        If the principal officer or other officer—

      (a)        reasonably believes that information (including an answer to a question) or a document or other record would assist the Ombudsman to make a determination under subsection (1); and

      (b)        gives the information  to the Ombudsman;

the officer has all the authorisations and protections that would apply if the information, document or record had been given in the course of an investigation that the Ombudsman was authorised to make.

      (3)        Subsection (2) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the information, document or record.

6C.   Executive and Ministerial matters must not be investigated

      (1)        The Ombudsman must not investigate the deliberations of

      (a)        the Executive Council or Cabinet; or

      (b)        a committee of the Executive Council or Cabinet.

      (2)        In addition, the Ombudsman must not question the merits of a decision—

      (a)        made by—

                  (i)         the Administrator, Executive Council or Cabinet; or

                  (ii)        a committee of the Executive Council or Cabinet; or

      (b)        made personally by a Minister.

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 put the complaint in writing or at any time require the complainant to put the complaint in 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 complies with the requirement.

      (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 the detention (in this section called the “custodian”)—

                  (i)         to be provided with facilities for preparing a complaint in writing under this Act, for giving 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 addressed to the Ombudsman and delivered by the person in custody to the custodian; 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 custodian.

      (4)        Where—

      (a)        a sealed envelope addressed to the Ombudsman is delivered by a person detained in custody to the custodian for sending to the Ombudsman; or

      (b)        a sealed envelope addressed to a person so detained and sent by the Ombudsman comes into the possession or under the control of the custodian,

the custodian is not 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 for the identification and delivery of sealed envelopes sent by the Ombudsman to persons detained in custody.

7A.   The Commonwealth Minister and Legislative Assembly reference of matter for investigation

      (1)        The Commonwealth Minister, the Legislative Assembly or a committee of the Assembly may refer to the Ombudsman for investigation and report any matter, other than a matter concerning a judicial proceeding, which the Commonwealth Minister, the Legislative Assembly or the committee considers should be investigated by the Ombudsman.

      (2)        The Ombudsman may investigate a matter referred under subsection (1).

8.   Complaints Officer

      (1A)     Subject to subsection (1AB), the Chief Executive Officer of the public service is the Complaints Officer for the purposes of this Act, with the function of receiving and dealing with complaints and other expressions of dissatisfaction with the services provided by any agency.

      (1AB)  The Minister may appoint an officer as the Complaints Officer.

      (1)        The Ombudsman shall inspect the records of the Complaints Officer at least annually but may do so at any time.

      (2)        The Complaints Officer must cooperate with the Ombudsman and for the purpose of this section an inspection is deemed to be an investigation .

      (3)        The purpose of an inspection under this section is to ensure that

      (a)        the record keeping of the Complaints Officer is appropriate;

      (b)        all complaints considered by the Complaints Officer were progressed in a timely and appropriate way;

      (c)        the powers, functions and resources of the Complaints Officer are sufficient and appropriate.

      (4)        The Ombudsman may make such recommendations to the Complaints Officer and the principal officer as considered necessary and appropriate as a result of the inspection and shall if the issues concerning such recommendations are of sufficient importance, include them in a report to the principal officer and the Minister in accordance with section 16, 17 or 18 as appropriate.


9.   Investigations

      (1)        The Ombudsman shall, before commencing an investigation under this Act of action taken by an agency, inform the Complaints Officer that the action is to be investigated.

      (2)        An investigation under this Act shall be conducted in private and, subject to this Act, in such manner as the Ombudsman thinks fit.

      (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.

      (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 connection 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 an agency or person unless, before completing the investigation, the Ombudsman has—

      (a)        if the opinions relate to an agency—given the principal officer of the agency and the officer principally concerned in the action to which the investigation relates opportunities to appear before the Ombudsman or before an authorised 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—given that person an opportunity to appear before the Ombudsman or before an authorised person, and to make such submissions, either orally or in writing, in relation to the action to which the investigation relates as the person thinks fit.

      (6)        Where the Ombudsman gives the principal officer of an agency an opportunity to appear before the Ombudsman or before an authorised person under subsection (5), the principal officer may appear in person or a person authorised by the principal officer may appear on behalf of the principal officer.

      (7)        Where the Ombudsman gives a person other than the principal officer of an agency an opportunity to appear before the Ombudsman or before an authorised person under subsection (5), the person may, with the approval of the Ombudsman or of the authorised person, as the case may be, be represented by another person.

      (8)        Where, in relation to an investigation under this Act, the Ombudsman proposes to give a person an opportunity to appear before the Ombudsman or before an authorised person and to make submissions under subsection (5), or proposes to make a requirement of a person under section 11—

      (a)        if a complaint was made orally with respect to the action and the complaint has not been put in writing—the complaint shall be put in writing; 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.

      (9)        The Ombudsman may, either before or after the completion of an investigation under this Act, discuss any matter that is relevant to the investigation with a Minister concerned with the matter.

      (10)      On the request of the responsible Minister, the Ombudsman shall consult that Minister before forming a final opinion on any of the matters referred to in subsection 16(1) or (2) that are relevant to the action under investigation.


      (11)      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 an agency, 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 doing so, the Ombudsman shall bring the evidence to the notice of—

      (a)        in the case of an agency—

                  (i)         if the person is a principal officer of the agency—the Minister responsible for the agency; or

                  (ii)        if the person is a member of the agency other than a principal officer—the principal officer; or

      (b)        in the case of a prescribed authority—

                  (i)         if the person is the principal officer of the authority—the responsible Minister for the authority; or

                  (ii)        if the person is not the principal officer of the authority—the principal officer of the authority.

9A.   Protection of persons providing information

      (1)        Subsections (2), (3), and (4) apply if─

      (a)        either¾

                  (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 apply¾

                  (i)         the person obtained the information, document or record in the course of the person’s duties as the principal officer of an agency, and the person is still the principal officer of the agency;

                  (ii)        the person obtained the information, document or record in the course of the person’s duties as the principal officer of an agency, the person is no longer the principal officer of the agency, and the principal officer of the agency 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 an agency, and the principal officer of the agency 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 an agency.


      (2)        If the person:

      (a)        gives the information to the Ombudsman or produces the document or record to the Ombudsman; and

      (b)        by doing so¾

                  (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 or agency; or

                  (iv)       discloses a communication between an officer of an agency 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 215, 216, or 217 of the Criminal Code 2007 that relates to this Act.

      (3)        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.

      (4)        Subsection (2) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the information, document or record.

10.    Power to obtain information and documents

      (1)        If the Ombudsman has reason to believe that a person is capable of providing 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 the person, at such place, and within such period or on such day and at such time, as are specified in the notice—

      (a)        to provide 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;

      (b)        to produce to the Ombudsman such documents or other records as are specified in the notice; or

      (c)        to provide to the Ombudsman any such information and to produce to the Ombudsman such documents or other records as are specified in the notice.

      (2)        If the Ombudsman has reason to believe that a person who is―

      (a)        an officer of an agency or prescribed authority; or

      (b)        a service provider of an agency or prescribed authority under a contract; or

      (c)        an employee of a service provider of an agency or prescribed authority under a contract;

is capable of providing information or producing documents or other records relevant to an investigation under this Act or both providing information and producing documents or other records of that kind, but the Ombudsman does not know the identity of the officer, the Ombudsman may, by notice in writing served on the principal officer of the agency, require the principal officer or a person nominated by the principal officer, at such place, and within such period or on such day and at such time, as are specified in the notice—

      (d)        to attend before a person specified in the notice to answer questions relevant to the investigation;

      (e)        to produce to a person specified in the notice such documents or other records as are so specified.


      (3)        If documents or other records are produced to the Ombudsman in accordance with a requirement under subsection (1) or (2) or an order under subsection 14 (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.

      (4)        If 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 day and at such time and place as are specified in the notice, to answer questions relevant to the investigation.

      (5)        Subsection (5B) applies if the Minister or the Administrator certifies the giving of stated information, answering of a stated question or production of a stated document or thing would be contrary to the public interest because it would involve¾

      (a)        the disclosure of communications between¾

                  (i)         the Executive Council or a member of the Executive Council and the Administrator; or

                  (ii)        a Minister, a Commonwealth Minister and a Minister of a State; or

                  (iii)       a Commonwealth Minister and a Minister of a State; or

      (b)        the disclosure of deliberations or a decision of¾

                  (i)         the Executive Council or a committee of the Executive Council; or

                  (ii)        a committee of the Legislative Assembly formed to advise the Administrator or a Minister; or

                  (iii)       the Cabinet of the Commonwealth or of Norfolk Island, or a committee of either of those Cabinets.

      (5A)     In addition, subsection (5B) applies if the Minister certifies the giving of stated information, answering of a stated question or production of a stated document or thing, would prejudice the investigation or detection of an offence against a law of Norfolk Island.

      (5B)     The Ombudsman must not require a person to¾

      (a)        give the stated information; or

      (b)        answer the stated question; or

      (c)        produce the stated document or thing.

      (6)        Notwithstanding the provisions of any enactment, a person is not excused from providing 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 providing 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; or

      (b)        might tend to incriminate the person or make the person liable to a penalty; or

      (c)        would disclose one of the following:

                  (i)         legal advice given to a Minister, an agency or a prescribed authority;

                  (ii)        a communication between an officer of an agency or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege; or


      (d)        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—

      (e)        an application under subsection 12(2); or

      (f)        proceedings for an offence against section 34 or for an offence against section 216, 217 or 239 of the Criminal Code 2007 that relates to this Act.

      (7)        A person is not liable to any penalty under the provisions of any other enactment because of the person having furnished information, produced a document or other record or answered a question when required to do so under this Act.

      (8)        The fact that a person is not excused under subsection (6) 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.

      (9)        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.

      (10)      In this section

      “Stateincludes the Australian Capital Territory and the Northern Territory.

11.    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)        no enactment prescribes a period within which the person is required to do or refuse to do the act or thing;

      (c)        under an enactment, an 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 may, after investigating the complaint, if he or she is of the opinion that there has been unreasonable delay in deciding whether to do the act or thing, give 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.

      (2)        Where the Ombudsman gives a certificate under subsection (1), the person required or permitted to exercise the power shall, for the purpose of enabling an application to be made under the enactment referred to in paragraph (1)(c) to the prescribed tribunal concerned, be taken to have made, on the day on which the certificate is given, a decision in the exercise of that power not to do the act or thing.

(3)        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)        no enactment prescribes a period within which the person is required to do or refuse to do the act or thing;

      (c)        under an enactment, an 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 an 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 may, after investigating the complaint, if he or she is of the opinion that there has been unreasonable delay in deciding whether to do the act or thing, give 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.

      (4)        Where the Ombudsman gives a certificate under subsection (3), the person required or permitted to exercise the power shall, for the purpose of enabling an application to be made to the person referred to in paragraph (3)(c), be taken to have made, on the day on which the certificate is given, a decision in the exercise of that power not to do the act or thing.

      (5)        Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, subsections (1), (2), (3) and (4) apply as if the board, committee or other body were a person empowered to make those decisions.

      (6)        In this section, “prescribed tribunal” means—

      (a)        the Public Service Board, the Administrative Review Tribunal and 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.

12.    Powers of Supreme Court

      (1)        Where a question with respect to the exercise of a power, or the performance of a function, of the Ombudsman by or under this Act or any other enactment arises between the Ombudsman and the principal officer of any agency that is affected by that exercise or performance, the Ombudsman or the principal officer of the agency may, subject to subsections (3) and (4), make an application to the Supreme Court for a determination of the question.

      (2)        Where a person fails to comply with a requirement made by the Ombudsman by notice under section 11 to provide information, to produce documents or other records or to attend before the Ombudsman to answer questions, the Ombudsman may make an application to the Supreme Court for an order directing that person to provide the information, to produce the documents or other records, or to attend before the Ombudsman to answer questions, at such place, and within such period or on such day and at such time, as are specified in the order.

      (3)        The Ombudsman shall not make an application to the Supreme Court under this section unless he or she has informed the responsible Minister of the agency concerned in writing of the reasons for the proposed application.

      (4)        The principal officer of an agency shall not make an application to the Supreme Court under subsection (1) unless he or she has informed the responsible Minister of the agency in writing of the reasons for the proposed application.

      (5)        The Supreme Court has jurisdiction with respect to matters arising under this section in respect of which applications are made to the Supreme Court.

13.    Complainant and Complaints Officer to be informed

      (1)        Where the Ombudsman does not, for any reason, investigate, or continue to investigate, action taken by an agency 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—

      (a)        the complainant; and

      (b)        the Complaints Officer;

of the decision and of the reasons for the decision.


      (2)        Where the Ombudsman completes an investigation of action taken by an agency 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, give to the complainant and to the Complaints Officer particulars of the investigation.

      (3)        The Ombudsman may, if he or she thinks fit, provide comments or suggestions with respect to any matter relating to or arising out of an investigation by the Ombudsman to any agency, body or person other than an agency, body or person to which or to whom he or she has given a report under section 16 relating to that matter or to matters that include that matter.

      (4)        Where the Ombudsman gives a report to an agency under section 16 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 given to the agency—give to the complainant a copy of the recommendations, together with such comments (if any) as the Ombudsman thinks fit; or

      (b)        in any other case—the Ombudsman may give to the complainant a copy of the recommendations, together with such comments (if any) as he or she thinks fit.

14.    Power to examine witnesses

                  The Ombudsman may administer an oath or affirmation to a person required to attend before him or her under section 10 and may examine the person on oath or affirmation.

15.    Power to enter premises

      (1)        For the purposes of an investigation under this Act, a person authorised under this section may, at any reasonable time of the day―

      (a)        enter a place that is

                  (i)         occupied by an agency; or

                  (ii)        occupied by a person who is a service provider of an agency 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)        For the purposes of an investigation under this Act, a person authorised under this section 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 service provider), other than documents in respect of which a certificate has been furnished under subsection 10(5), at a reasonable time of the day arranged with the principal officer of the agency concerned.

      (3)        Subsection (2) shall not be taken to restrict the operation of section 10.

      (4)        A reference in this section to a person authorised under this section includes a reference to the Ombudsman, the Deputy Ombudsman and an authorised person.

Division 2—Reports

16.    Reports by Ombudsman

      (1)        Where, after an investigation under this Act into action taken by an agency 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)        if 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 given, but was not given, 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 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 agency concerned, through the Complaints Officer.

      (3)        The Ombudsman—

      (a)        shall include in a report under subsection (2) the 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 agency to which the report is given to give 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 an agency, the agency may give to the Ombudsman such comments concerning the report as it wishes to make.

      (6)        The Ombudsman shall give a copy of a report made under subsection (2) to the responsible Minister of the agency concerned and to the Administrator.


17.    Special reports to Minister

      (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 an agency under section 18 within a reasonable time after the Ombudsman gave the report to the agency, the Ombudsman may inform the Minister accordingly in writing.

      (2)        Where the Ombudsman informs the Minister under subsection (1) in relation to a report, the Ombudsman shall give to the Minister—

      (a)        if a copy of the report has not previously been given to the Minister under subsection 16 (6)—a copy of the report; and

      (b)        if the agency to which the report was made has given comments concerning the report to the Ombudsman—a copy of those comments.

      (3)        In considering whether to give information in relation to a report to the Minister under subsection (1), the Ombudsman shall have regard to any comments given to him or her by the agency to which the report was made.

      (4)        The Ombudsman shall provide to the Administrator a copy of any report or information given under this section.

18.    Special reports to Legislative Assembly

      (1)        Where the Ombudsman has, in accordance with subsection 17(1), given information to the Minister in relation to a report concerning an investigation made by the Ombudsman, the Ombudsman may also give to the Speaker, for presentation to the Legislative Assembly, copies of a report prepared by the Ombudsman concerning the investigation, being a report that sets out a copy of any comments given to the Ombudsman under subsection 16(5) by the agency concerned.

      (2)        The Ombudsman shall provide to the Administrator a copy of any report submitted under this section.

19.    Annual reports to the Legislative Assembly

      (1)        The Ombudsman may, from time to time, submit to the Minister for presentation to the Legislative Assembly—

      (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 under this Act;

but nothing in this section affects the powers and duties of the Ombudsman under sections 16, 17 and 18.

      (2)        Where the Ombudsman submits a report to the Minister under subsection (1), the Minister shall cause the report to be laid before the Legislative Assembly on the next following sitting day of the Legislative Assembly after its receipt by the Minister.

Part 3—Conditions of Service, and Staff, of the Ombudsman

Division 1—Ombudsman

20.    Interpretation

      In this Part, unless the contrary intention appears, Ombudsman means the Ombudsman or a Deputy Ombudsman.


21.    Appointment of Ombudsman

      (1)  Subject to section 29A, the Ombudsman shall be appointed by the Administrator.

      (2)        The 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, a person appointed under section 21 holds office for such period, not exceeding 7 years, as is specified in the instrument of appointment, but is eligible for reappointment.

      (2)        A person who has attained the age of 70 years shall not be appointed as Ombudsman, and a person shall not be appointed as Ombudsman for a period that extends beyond the day on which the person will attain the age of 70 years.

23.    Salary and allowances

      The Ombudsman is entitled to such remuneration, allowances and other entitlements—

      (a)        as are determined by law in respect of the Ombudsman; or

(b)               if there is no such determination—as are determined by the Public Sector Remuneration Tribunal  under the Public Sector Remuneration Tribunal Act 1992.

24.    Leave of absence

      The Minister may grant leave of absence to the Ombudsman upon such terms and conditions as to remuneration or otherwise as the Minister determines.

25.    Resignation

The Ombudsman may resign from office by signed notice given to the Minister or the Administrator.

26.    Retirement

The Administrator may, with the consent of the Ombudsman, retire the Ombudsman on the ground of physical or mental incapacity.

27.    Suspension and removal of Ombudsman

      (1)        The Administrator may remove the 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 Administrator by the Legislative Assembly.

      (2)        The Administrator may suspend the Ombudsman from office on the ground of proven misbehaviour or physical or mental incapacity and shall give the Minister written notice of the suspension and the grounds for suspension.

      (3)        Where the Administrator suspends the Ombudsman from office, the Minister shall cause a statement of the grounds of the suspension to be laid before the Legislative Assembly on the next following sitting day of the Legislative Assembly after the suspension.

      (4)        Where such a statement has been laid before the Legislative Assembly, the Legislative Assembly may, within 3 sitting days of the Legislative Assembly after the day on which the statement has been laid before it or within 30 days whichever shall first occur, by resolution declare that the Ombudsman should be removed from office and, if the Legislative Assembly so passes such a resolution, the Administrator shall remove the Ombudsman from office.

      (5)        If, at the end of 3 sitting days of the Legislative Assembly, or at the end of 30 days after the day on which the statement has been laid before it, whichever shall first occur, the Legislative Assembly has not passed such a resolution, the suspension terminates.

      (6)        If the 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 Administrator shall remove the Ombudsman from office.

      (7)        If the Ombudsman is absent from duty, except on leave granted by the Minister, for 14 consecutive days or for 28 days in any 12 months, the Administrator may remove the Ombudsman from office.

      (8)        The Ombudsman shall not be removed or suspended from office except as provided by this section.

      (9)        The suspension of the Ombudsman from office does not affect any entitlement of the Ombudsman to be paid remuneration and allowances.

28.    Acting appointments

      (1)        The Administrator may appoint a person to act as Ombudsman—

      (a)     during a vacancy in the office of Ombudsman, 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 or is expected to be absent from duty or from Norfolk Island or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy shall not continue to act for more than 12 months.

      (2)        Anything done by or in relation to a person purporting to act in the office of Ombudsman is not invalid merely because—

      (a)     the occasion for the appointment had not arisen;

      (b)     there was a defect or irregularity in connection with the appointment;

      (c)     the appointment had ceased to have effect; or

      (d)     the occasion to act had not arisen or had ceased.

Division 2—Staff

29.             Staff

      The staff required for the purposes of this Act shall be public sector employees.

Division 3—Arrangement with Commonwealth

29A. Arrangement relating to Commonwealth Ombudsman

      (1)        The Administrator may, on the advice of the Minister, make an agreement with the Commonwealth for  the purposes of this section as to the terms and conditions on which:

      (a)        the Commonwealth Ombudsman, any Commonwealth Deputy Ombudsman and staff appointed under the Ombudsman Act 1976 (Commonwealth) may perform the functions of the Ombudsman,  a Deputy Ombudsman and staff under this Act; and

      (b)        the confidentiality required under section 32 will be ensured.

      (2)        If the Administrator declares by notice in the Gazette that such an agreement is in place¾

      (a)        the person holding the office of Commonwealth Ombudsman for the time being (including under a  temporary or acting appointment) is the Ombudsman;

      (b)        a person holding the office of Commonwealth Deputy Ombudsman for the time being (including under a  temporary or acting appointment) is a Deputy Ombudsman;


      (c)        staff of the Commonwealth Ombudsman are taken to be staff of the Ombudsman; and

      (d)        sections 21 to 29 do not apply.

Part 4—Miscellaneous

30.    Ombudsman not to be sued

      (1)        Subject to section 31, neither the Ombudsman nor a person acting under his or her direction or authority is liable to an action, suit or proceeding 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.

      (2)        A reference in subsection (1) to the Ombudsman includes a reference to a delegate of the Ombudsman.

31.    Delegation

      (1)        The Ombudsman may, by signed instrument, delegate to a person all or any of his or her powers under this Act, other than powers under sections 16, 17, 18 and 19.      

      (2)        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.

32.    Officers to observe confidentiality

      (1)        In this section, “officer” means—

      (a)     the Ombudsman;

      (b)     a person who is a member of the staff referred to in section 28; or

      (c)     a person, not being a person referred to in paragraph (b), to whom the Ombudsman has delegated any of his or her powers under section 31 or who is an authorised person.

      (2)        Subject to this section, an officer shall not, either directly or indirectly, and either while the person is, or after ceasing to be, an officer, make a record of, or divulge or communicate to any person, any information acquired because of the person being an officer, being information that was disclosed or obtained under the provisions of this Act.

      Penalty:  50 penalty units or imprisonment for 6 months, or both.

      (3)        Subsection (2) does not prevent an officer—

      (a)     from making a record of, or divulging or communicating to any person, information acquired in the performance of the officer’s duties as an officer for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman under this Act; or

      (b)     from divulging or communicating information to a person—

                  (i)    if the information was provided by an officer of an agency in the performance of the person’s duties as such an officer—with the consent of the principal officer of the agency or of the responsible Minister of the agency; or

                  (ii)   if the information was provided by a person otherwise than as set out in subparagraph (i)—with the consent of the person who provided the information.

      (4)        Subject to subsection (5), subsection (2) does not prevent the Ombudsman from disclosing, in a report or information presented or provided to the Legislative Assembly 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 or information.


      (5)        Where the Minister gives to the Ombudsman a certificate in writing certifying that—

      (a)     the disclosure of information or documents concerning a matter; or

      (b)     the disclosure of a document;

would, for a reason specified in the certificate, being a reason referred to in subsection 10(5) or (6), as the case may be, be contrary to the public interest, an officer shall not, either directly or indirectly and either while the person is, or after ceasing to be, an officer, except as provided in subsection (6)—

      (c)     divulge or communicate to any person any information acquired 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)     give such a document, or a copy of, or an extract from, such a document, to any person.

      Penalty:  50 penalty units or imprisonment for 6 months, or both.

      (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 giving 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 the officer to the person lawfully entitled to the custody of the document.

      (7)        A person who is or has been an officer is not compellable, in any proceedings before a court or before a person authorised by a law, or by consent of parties, to hear, receive and examine evidence, to disclose any information acquired because of the person’s being or having been an officer, being information that was disclosed or obtained under the provisions of this Act.

33.    Disclosure of information by Ombudsman

      (1)        Nothing in this Act precludes 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 under this Act if, in the opinion of the Ombudsman, it is in the interests of any agency 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 under this Act.

      (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 an agency or person unless the Ombudsman has complied with subsection 9 (6) 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.

      (4)        This section has effect notwithstanding subsection 9(3) and section 32 (other than subsection 32(5)).


34.    Offences

      (1)        A person shall not refuse or fail, without reasonable excuse—

      (a)     to attend before the Ombudsman;

      (b)     to be sworn or make an affirmation;

      (c)     to provide information; or

      (d)     to answer a question or produce a document or record;

when so required under this Act.

Penalty:  50 penalty units or imprisonment for 6 months, or both.

      (2)        A person shall not—

      (a)     wilfully obstruct, hinder or resist the Ombudsman or any other person in the exercise of functions under this Act without reasonable excuse; or

      (b)     provide information or make a statement to the Ombudsman or to an authorised person knowing that it is false or misleading in a material particular.

      Penalty:  50 penalty units or imprisonment for 6 months, or both.

35.    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 as a result 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 giving of a document or information to, a person who is an officer within the meaning of section 32, for the purposes of this Act, whether or not the statement was made, or the document or information was given, under a requirement under section 10 or an order under section 12.

36.    Determination of fees and expenses of witnesses

      (1)        The Minister may, by notice in the Gazette, determine—

      (a)        the fees and expenses payable to witnesses appearing before the Ombudsman; or

      (b)        matters connected with those fees and expenses.

      (2)        The Minister may, by signed instrument, delegate to a person all or any of his or her powers under this section.

37.    Regulations

      The Administrator may make Regulations, not inconsistent with this Act, prescribing—

      (a)        matters required or permitted by this Act to be prescribed; or

      (b)        matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 


NOTES

The Ombudsman Act 2012 as shown in this consolidation comprises Act No. 5 of 2012 and amendments as indicated in the Tables below.

Enactment

Number and year

Date of commencement

Application saving or transitional provision

Ombudsman Act 2012

5, 2012

Part 1 comm 27.7.12; rem comm. 24.8.12

 

 

 

 

 

Ombudsman (Amendment) Act 2012

7, 2012

24.8.2012

 

 

 

 

 

[Previously consolidated as at 25 August 2012]

 

 

 

 

Interpretation (Amendment) Act 2012

[to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]

14, 2012

28.12.12

 

 

[Previously consolidated as at 2 April 2013]

 

 

Ordinance

FRLI registration

Commencement

Application, saving and transitional provision

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)

17 June 2015 (F2015L00835)

Sch 1 (items 211, 344, 345): 18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345)

 

Table of Amendments

ad =    added or inserted

am = amended

rep = repealed

rs =      repealed and substituted

Provision affected

How affected

 

 

3

am

7, 2012; Ord No 2, 2015

5

am

7, 2012

6

am

7, 2012

7A

am

7, 2012

9

am

7, 2012

10

am

7, 2012

13

am

7, 2012