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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 81
As laid on the table, read a first time and withdrawn by order
of the Speaker
2 March 2005
South Australia
A Bill For
An
Act to provide for the making and resolution of complaints against education
service providers; to make provision in respect of the rights and
responsibilities of people involved in the education system; and for other
purposes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Objects
4 Interpretation
5 Application of Act
Part 2—Education Ombudsman
Division 1—Appointment and
conditions of office
6 Appointment
7 Term of office and conditions of
appointment
8 Remuneration
9 Temporary appointments
Division 2—Functions and
powers
10 Functions
11 Powers
12 Independence
Division 3—Committees
13 Committees
Division 4—Appointment of
conciliators and professional mentors
14 Appointment of conciliators and
professional mentors
Division 5—Other matters
15 Staff
16 Budget
17 Annual report
18 Other reports
19 Immunity
Part 3—Charter of Education
Services Rights
20 Development of Charter
21 Review of Charter
22 Consultation
23 Content of Charter
24 Approval of Charter
Part 4—Complaints
Division 1—Making a complaint
25 Who may complain
26 Grounds on which a complaint may be
made
27 Form of complaint
28 Time within which a complaint may be made
29 Further information may be required
Division 2—Assessment
30 Assessment
31 Preliminary inquiries
32 Provision of documents etc on referral
of complaint
33 Splitting or joining of complaints
Division 3—No further action
on complaint
34 No further action on complaint
Division 4—Miscellaneous
35 Withdrawal of complaint
Part 5—Conciliation of
complaints
36 Function of conciliator
37 Public interest
38 Assistance at conciliation
39 Reports from conciliator
40 Conciliation may be brought to an end
41 Privilege and confidentiality
42 Professional mentor
43 Enforceable agreements
Part 6—Investigations
Division 1—Application of Part
44 Matters that may be investigated
45 Limitation of powers
Division 2—Conduct of
investigations
46 Conduct of investigation
47 Representation
48 Use and obtaining of information
49 Power to examine witnesses etc
50 Search powers and warrants
51 Reimbursement of expenses
52 Reference to another authority for
investigation
53 Possession of document or other seized
item
Division 3—Privilege
54 Privilege
Division 4—Action on
investigation
55 Reports
56 Notice of action to providers
57 Right of appeal
Part 7—Education Services
Advisory Council
58 Establishment of Council
59 Conditions of membership
60 Functions of Council
61 Procedure at meetings
62 Disclosure of interest
Part 8—Miscellaneous
63 Delegation
64 Adverse comments in reports
65 Protection of identity of service user
or complainant from service provider
66 Preservation of confidentiality
67 Offence relating to intimidation
68 Offence relating to reprisals
69 Offences relating to obstruction etc
70 Offences relating to the provision of
information
71 Protection from civil actions
72 Informality of procedures
73 Determining reasonableness of
education service provider's actions
74 Interaction with Ombudsman
Act 1972
75 Regulations
76 Review of Act
77 Transitional
provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Education Ombudsman Act 2005.
This Act will come into operation on a day to be fixed by
proclamation.
The objects of this Act are—
(a) to
improve the quality of education in South Australia through the provision of a
fair and independent means for the assessment, conciliation, investigation and
resolution of complaints; and
(b) to
provide effective alternative dispute resolution mechanisms for people involved
in the education system to resolve complaints; and
(c) to
promote the development and application of principles and practices of the
highest standard in the handling of complaints concerning the provision of
education services; and
(d) to
provide a scheme that can be used to monitor trends in complaints concerning
the provision of education services; and
(e) to
identify, investigate and report on systemic issues concerning the delivery of
education services.
In this Act, unless the contrary intention
appears—
Charter means the Education Services Rights Charter under Part 3;
child means a person under the age of 18 years;
complainant means a person who makes a complaint and includes a person on
whose behalf a complaint is made;
complaint means a complaint under this Act;
conciliator means a conciliator appointed under this Act;
confidential information includes—
(a) information
about the identity, occupation or whereabouts of a complainant, education
service user or education service provider involved in a complaint,
investigation or inquiry under this Act;
(b) information
disclosed by a complainant, education service user or education service
provider for the purposes of any complaint, investigation or inquiry under this
Act;
(c) personal
information about a complainant, education service user or education service
provider under this Act;
(d) information
the release of which would cause personal distress to a person;
(e) information
provided on a confidential basis or otherwise affected by a requirement as to
confidentiality;
Council means the Education Services Advisory Council established under
Part 7;
Department means the department of the Minister to whom the administration
of this Act has been committed;
Education Ombudsman means the Education Ombudsman appointed under Part 2 (and
includes a person acting in that office from time to time);
education service means a service consisting of the
provision of educational programs for the purposes of—
(a) pre-school
education; or
(b) primary
or secondary education;
education service provider means a person or body who or which
provides an education service;
parent of a child includes—
(a) a
person who has legal custody or guardianship of the child; and
(b) a
person standing in loco parentis in relation to the child;
pre-school education has the same meaning as in the Education Act 1972;
professional mentor means a professional mentor appointed under Part 2;
service recipient means a person (of any age)—
(a) who
is receiving an education service; or
(b) who
is seeking to receive an education service or, in the case of a child, for whom
the provision of an education service is being sought;
State Ombudsman means the Ombudsman under the Ombudsman Act 1972;
volunteer means a person who receives no remuneration for acting in a
particular capacity (being a capacity associated with the provision of an
education service).
This Act does not apply in respect of any class of service
excluded from the ambit of this Act by the regulations.
Division 1—Appointment and conditions of office
(1) There
is to be an Education Ombudsman.
(2) The
Education Ombudsman is appointed by the Governor.
7—Term of office and conditions of appointment
(1) The
Education Ombudsman is appointed on conditions determined by the Governor and
for a term, not exceeding 7 years, specified in the instrument of appointment.
(2) An
appointment may be renewed but a person must not hold office as Education
Ombudsman for more than 2 consecutive terms.
(3) The
Governor may remove the Education Ombudsman from office on the presentation of
an address from both Houses of Parliament seeking the Education Ombudsman's
removal.
(4) The Governor may suspend the Education
Ombudsman from office on the ground of incompetence or misbehaviour and, in
that event—
(a) a
full statement of the reason for the suspension must be laid before both Houses
of Parliament within 3 sitting days of the suspension; and
(b) if,
at the expiration of 1 month from the date on which the statement was laid
before Parliament, an address from both Houses of Parliament seeking the
Education Ombudsman's removal has not been presented to the Governor, the
Education Ombudsman must be restored to office.
(5) The office of Education Ombudsman becomes
vacant if the Education Ombudsman—
(a) dies;
or
(b) resigns
by written notice given to the Minister; or
(c) completes
a term of office and is not reappointed; or
(d) is
removed from office by the Governor under subsection (3); or
(e) becomes
bankrupt or applies as a debtor to take the benefit of the laws relating to
bankruptcy; or
(f) is
convicted of an indictable offence or sentenced to imprisonment for an offence;
or
(g) becomes
a member of the Parliament of this State or any other State of the Commonwealth
or of the Commonwealth or becomes a member of a Legislative Assembly of a
Territory of the Commonwealth; or
(h) becomes,
in the opinion of the Governor, mentally or physically incapable of carrying
out satisfactorily the duties of office.
(6) Except
as is provided by this section, the Education Ombudsman may not be removed or
suspended from office, nor will the office of the Education Ombudsman become
vacant.
The Education Ombudsman is entitled to remuneration, allowances
and expenses determined by the Governor.
The Minister may appoint a person (who may
but need not be an employee in the Public Service) to act as the Education
Ombudsman—
(a) during
a vacancy in the office of Education Ombudsman; or
(b) when
the Education Ombudsman is absent from, or unable to discharge, official
duties; or
(c) if
the Education Ombudsman is suspended from office under this Act.
Division 2—Functions and powers
The Education Ombudsman has the following
functions:
(a) to
prepare and regularly review the Charter of Education Services Rights under
Part 3; and
(b) to
identify and review issues arising out of complaints and to make
recommendations for improving education services and preserving and increasing
the rights of people who use those services; and
(c) to
review and identify the causes of complaints and to—
(i) recommend
ways to remove, resolve or minimise those causes; and
(ii) detect
and review trends in the delivery of education services; and
(d) to
provide information, education and advice in relation to—
(i) the
Charter; and
(ii) education
service rights and responsibilities; and
(iii) procedures
for resolving complaints; and
(iv) other
matters (if any) determined to be appropriate by the Education Ombudsman; and
(e) to
receive, assess and resolve complaints; and
(f) to
encourage and assist education service users to resolve complaints directly
with education service providers; and
(g) to
assist education service providers to develop or improve procedures to resolve
complaints; and
(h) to
inquire into and report on any matter relating to education services on the
Education Ombudsman's own motion or at the request of the Minister; and
(i) to
advise, and report to, the Minister on any matter relating to education
services or the administration or operation of this Act; and
(j) to
maintain links with—
(i) education
service providers; and
(ii) organisations
that have an interest in the provision of education services; and
(iii) organisations
that represent the interests of the users of education services; and
(k) to
consult and cooperate with other agencies and authorities that are involved in
protecting the interests and rights of members of the community in the area of
the provision of education services, including—
(i) the
State Ombudsman; and
(ii) the
Equal Opportunity Commissioner (under the Equal Opportunity Act 1984);
and
(iii) the
Human Rights and Equal Opportunity Commission (under the Human Rights and
Equal Opportunity Commission Act 1986 of the Commonwealth); and
(l) to
perform other functions conferred on the Education Ombudsman by or under this
or any other Act.
The Education Ombudsman has the powers necessary or expedient for,
or incidental to, the performance of the Education Ombudsman's functions.
(1) In
performing and exercising his or her functions and powers under this Act, the
Education Ombudsman must act independently, impartially and in the public
interest.
(2) The
Minister cannot control how the Education Ombudsman is to exercise the
Education Ombudsman's statutory functions and powers1.
Note—
1 This
provision does not derogate from any express power of the Minister under this
Act.
(1) The
Education Ombudsman may establish such committees as the Education Ombudsman
considers appropriate to assist the Education Ombudsman in the performance of
the Education Ombudsman's functions under this Act.
(2) The
membership and functions of a committee will be determined by the Education
Ombudsman.
(3) A
member of a committee is entitled to any remuneration, allowances or expenses
determined or approved by the Minister after consultation with the Education
Ombudsman.
(4) The procedures to be observed by a
committee will be—
(a) as
determined by the Education Ombudsman; or
(b) insofar
as a determination is not made under paragraph (a)—as determined by the committee.
Division 4—Appointment of conciliators and professional
mentors
14—Appointment of conciliators and professional mentors
(1) The
Education Ombudsman may appoint suitable persons as conciliators or
professional mentors for the purposes of this Act.
(2) An
appointment will be made for a term, not exceeding 3 years, determined by the
Education Ombudsman and on conditions determined or approved by the Minister.
(3) The
conditions under subsection (2) may include conditions as to the
remuneration, allowances or expenses to be paid to the relevant person.
(4) An
appointment may be renewed from time to time.
(5) Nothing
in this section prevents the Education Ombudsman, or a member of the Education
Ombudsman's staff, acting as a conciliator under this Act.
(1) The Education Ombudsman's staff consists of—
(a) Public
Service employees assigned to work in the office of the Education Ombudsman
under this Act; and
(b) any
person appointed under subsection (3).
(2) The Minister may, by notice in the Gazette—
(a) exclude
Public Service employees who are members of the Education Ombudsman's staff
from specified provisions of the Public Sector Management Act 1995;
and
(b) if
the Minister thinks that certain provisions should apply to such employees
instead of those excluded under paragraph (a)—determine that those
provisions will apply,
and such a notice will have effect according to its terms.
(3) The
Education Ombudsman may, with the consent of the Minister, appoint staff for
the purposes of this Act.
(4) The
terms and conditions of employment of a person appointed under subsection (3)
will be determined by the Governor and such a person will not be a Public
Service employee.
(5) The
Education Ombudsman may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
The Education Ombudsman's proposed budget for a particular
financial year is to be submitted for examination by the Economic and Finance
Committee of the Parliament by the end of the preceding calendar year.
(1) The
Education Ombudsman must in each year prepare a report on the work of the
Education Ombudsman's office during the preceding year and send copies of the
report to the President of the Legislative Council and the Speaker of the House
of Assembly to be laid before their respective Houses at the earliest
opportunity.
(2) The
Education Ombudsman must send a copy of each annual report to the Minister.
(1) The
Education Ombudsman may, at any time, prepare a report to the Minister on any
matter arising out of the exercise of the Education Ombudsman's functions under
this Act.
(2) Subject
to subsection (3), the Minister must, within 2 weeks after receiving a
report under this section, have copies of the report laid before both Houses of
Parliament.
(3) If the Minister cannot comply with
subsection (2) because Parliament is not sitting, the Minister must
deliver copies of the report to the President and the Speaker and the President
and the Speaker must then—
(a) immediately
cause the report to be published; and
(b) lay
the report before their respective Houses at the earliest opportunity.
(4) A
report will, when published under subsection (3)(a), be taken for the
purposes of any other Act or law to be a report of the Parliament published
under the authority of the Legislative Council and the House of Assembly.
(1) The
Education Ombudsman, a member of a committee appointed under this Part, a
conciliator or a professional mentor incurs no civil liability for an honest
act or omission in the performance or exercise, or purported performance or exercise,
of a function or power under this Act.
(2) The
immunity under subsection (1) does not extend to culpable negligence.
(3) A
civil liability that would, but for this section, attach to a person attaches
instead to the Crown.
Part 3—Charter of Education Services
Rights
(1) The
Education Ombudsman must develop a draft Charter of Education Services
Rights.
(2) The
draft must be presented to the Minister within 12 months after the commencement
of this Part or within such longer period as the Minister may allow.
(3) The
Education Ombudsman must report to the Minister on the development of the draft
at intervals of not more than 4 months until the draft is presented to the
Minister under subsection (2).
The Education Ombudsman—
(a) may
at any time review the Charter; and
(b) if
the Minister so directs, must review the Charter.
In developing or reviewing the Charter, the Education Ombudsman
must invite submissions from, and consult with, to such extent as may be reasonable,
interested persons with a view to obtaining a wide range of views in relation
to the matters under consideration.
In developing or reviewing the Charter,
the Education Ombudsman may have regard to any matter considered relevant to
the provision or use of education services and must have regard to the
following principles:
(a) that
people who access education services should be able to receive an education—
(i) that
is provided in an environment protective of their safety, health and welfare;
and
(ii) that
recognises their diverse capabilities, backgrounds, circumstances and
characteristics; and
(iii) that
is directed towards fulfilling their individual potentials and that is directed
towards equipping them with the necessary skills for continuing learning and
development and effective participation in society; and
(iv) that
is focussed on providing stated or projected goals or outcomes;
(b) that
parents of children within the education system should—
(i) be
given a reasonable opportunity to participate in supporting the education of
their children; and
(ii) be
provided with a reasonable amount of information about the education programs
that are available to their children, and about the progress of their children
within the education system; and
(iii) be
able to gain reasonable access to the people who are providing education
programs to their children;
(c) that
education programs should be delivered by appropriately trained people who view
the interests of service recipients as paramount;
(d) that
education service providers should act openly and cooperatively with those
persons who have an interest in the delivery of those services.
(1) The Minister may, on the receipt of a draft
Charter or a variation of the Charter from the Education Ombudsman—
(a) approve
the Charter or the variation; or
(b) require
an alteration to the Charter or the variation, after consultation with the
Education Ombudsman, and then approve the Charter or variation as altered.
(2) The
Minister must then cause a copy of the Charter or variation (as the case may
be) to be laid before both Houses of Parliament.
(3) The Charter or the variation will not come
into operation—
(a) until
14 sitting days of each House of Parliament have elapsed after a copy of the
Charter or the variation is laid before each House; and
(b) if,
within those 14 sitting days, a motion for disallowance or amendment of the
Charter or the variation is moved in either House, unless or until—
(i) in
the case of a motion for disallowance—the motion is defeated or withdrawn, or
lapses; or
(ii) in
the case of a motion for amendment—the amendment is made in accordance with
subsection (4) or the motion is defeated or withdrawn, or lapses.
(4) If
a motion for amendment is moved under subsection (3)(b), the Minister may
withdraw the Charter or the variation, make the relevant amendment, and then
lay the amended Charter or variation before both Houses of Parliament.
A complaint about an education service
used, received by or sought by a person may be made to the Education Ombudsman
by—
(a) unless
the person is under the age of 16 years—the person himself or herself; or
(b) if
the person is under the age of 16 years—a parent of the person; or
(c) if
the person has attained the age of 16 years—a person appointed by him or
her to make the complaint on his or her behalf; or
(d) a
Member of Parliament; or
(e) if
the person has died—a person who can demonstrate to the Education Ombudsman
that he or she had an enduring relationship with the deceased person, or a
personal representative of the deceased person; or
(f) the
Minister; or
(g) the
Chief Executive of the Department; or
(h) any
other person, or any body, approved by the Education Ombudsman to act on his or
her behalf.
26—Grounds on which a complaint may be made
(1) A complaint may be made (and may only be
made under this Act) on one or more of the following grounds:
(a) that
an education service provider has acted unreasonably by not providing an
education service, or by discontinuing (or proposing to discontinue) an
education service provided to a particular person;
(b) that
an education service provider has acted unreasonably in the manner of providing
an education service;
(c) that
an education service provider has failed to treat an education service user in
an appropriate professional manner;
(d) that
an education service provider has acted unreasonably by denying an education
service user access to, or restricting the user's reasonable access to, records
relating to the user that were in the service provider's possession;
(e) that
an education service provider has acted unreasonably by not taking proper
action in relation to a complaint made to him or her by the user about a
service provider's action of a kind referred to in this section;
(f) that
an education service provider has acted in any other manner that is
inconsistent with the Charter;
(g) that
an education service provider has acted in any other manner that did not
conform with the generally accepted standard of service delivery expected of a
provider of the kind of service to which the complaint relates.
(2) Nothing
in subsection (1) requires an education service provider to act, or to
provide advice or information with respect to a matter, outside the field of
expertise associated with the provider's experience.
(3) For
the purposes of subsection (1), information appropriately provided to a
person lawfully acting on behalf of an education service user at the time the
information is provided will be taken to have been appropriately provided to
the education service user.
(4) If
a complaint relates to an act or omission of a volunteer while working for
another person or body, the complaint will be taken to be a complaint against
the other person or body (as the case may be) and the volunteer cannot be
required to participate in any proceedings under this Act and in particular
cannot be the subject of the exercise of any power under Part 6 Division 2.
(1) A
complaint is to be made in a manner approved or determined by the Education
Ombudsman.
(2) A
person must, in making a complaint, disclose to the Education Ombudsman, to the
best of the person's abilities, all grounds of complaint on which he or she
intends to rely.
28—Time within which a complaint may be made
(1) Subject
to subsection (2), a complaint must be made within 2 years from the day on
which the complainant first had notice of the circumstances giving rise to the
complaint.
(2) The Education Ombudsman may extend the
period under subsection (1) in a particular case if satisfied that it is
appropriate to do so after taking into account—
(a) whether
a proper investigation of the complaint should still be possible; and
(b) whether
the complaint should still be amenable to resolution under the provisions of
this Act; and
(c) whether
it would be in the public interest to entertain the complaint; and
(d) any
other matter considered relevant by the Education Ombudsman.
(3) For
the purposes of subsection (1), a complainant will be presumed to have
notice of the circumstances giving rise to the complaint at the time he or she
might reasonably be expected to have had such notice.
29—Further information may be required
(1) The Education Ombudsman may, at any time,
require a complainant—
(a) to
provide further information or documents;
(b) to
verify all or any part of the complaint by statutory declaration.
(2) When
making a requirement under subsection (1), the Education Ombudsman must
specify a reasonable period within which the requirement is to be satisfied.
(3) The
Education Ombudsman may extend the period specified under subsection (2)
(whether before or after its expiry).
(1) The
Education Ombudsman must assess a complaint and make a determination in
accordance with this section within 45 days after receiving it (or within such
longer period as may be necessary in view of any delays that have occurred
while the Education Ombudsman or another person takes steps required by or
under this Act, or while the Education Ombudsman is undertaking a preliminary
inquiry under section 31).
(2) Subject to this Act, the Education
Ombudsman may—
(a) refer
the complaint to a conciliator under Part 5; or
(b) investigate
the complaint under Part 6; or
(c) if
of the opinion that the complaint relates to a matter that falls within the
functions conferred on another person or body and that it is appropriate in the
circumstances to make a referral under this provision, refer the complaint to
the other person or body; or
(d) determine
to take no further action on the complaint.
(3) The Education Ombudsman must not refer a
complaint to a conciliator if the complaint appears to the Education Ombudsman
to indicate—
(a) the
existence of a significant issue of public interest or importance; or
(b) a
significant question as to the practice of an education service provider.
(4) A
complaint should not proceed under this Act if it appears to the Education
Ombudsman that the complainant has failed, without good reason, to take
reasonable steps to resolve the matter with the relevant education service
provider before making the complaint.
(5) Within 14 days after making a determination
under subsection (1), the Education Ombudsman must provide written notice
of the determination—
(a) to
the complainant; and
(b) except
where the Education Ombudsman has determined to dismiss the complaint, to the
education service provider.
(6) In
subsection (1), complaint includes a complaint that has been
referred, or referred back to the Education Ombudsman, by the State Ombudsman
or other person or body referred to in subsection (2).
(1) The
Education Ombudsman may, in such manner as the Education Ombudsman thinks fit,
undertake a preliminary inquiry in connection with making a determination under
section 30.
(2) For
the purposes of an inquiry, the Education Ombudsman may require an education
service provider to provide information, or any response or explanation, about
any matter relevant to the inquiry.
(3) The
Education Ombudsman must specify a reasonable period within which an education
service provider is to comply with a requirement under subsection (2).
(4) The
Education Ombudsman may extend the period specified under subsection (3)
(whether before or after its expiry).
(5) An education service provider must comply
with a requirement under subsection (2).
Maximum penalty: $10 000.
(6) However,
a person is not obliged to comply with a requirement under subsection (2)
if to do so might tend to incriminate the person or make the person liable to a
criminal penalty.
(7) During
the conduct of a preliminary inquiry, the Education Ombudsman may assist the
parties towards resolution of the complaint through informal mediation.
(8) Informal mediation should not occur if the
complaint appears to the Education Ombudsman to indicate—
(a) the
existence of a significant issue of public interest or importance; or
(b) a
significant question as to the practice of an education service provider.
(9) Informal
mediation will occur in such manner, and subject to such conditions, as the
Education Ombudsman thinks fit.
(10) Anything
said or done during an informal mediation, other than something that reveals a
significant issue of public interest or importance, is not to be disclosed in
any other proceedings (whether under this or any other Act or law) except by
consent of the parties.
(11) An informal mediation must be brought to an
end—
(a) if
the informal mediation reveals, in the opinion of the Education Ombudsman—
(i) a
significant issue of public interest or importance; or
(ii) a
significant question as to the practice of an education service provider; or
(b) at
the request of a party to the informal mediation.
(12) The
Education Ombudsman may bring an informal mediation to an end at any time.
(13) For
the purposes of conducting any inquiry or informal mediation under this
section, the Education Ombudsman may obtain the assistance of a professional
mentor.
(14) The
Education Ombudsman may discuss any matter relevant to making a determination
under section 30 or with respect to the operation of this section with a
professional mentor.
32—Provision of documents etc on referral of complaint
(1) If
the Education Ombudsman has referred a complaint to another person or body
under this Division, the Education Ombudsman may give to the other person or
body all documents and information in the possession of the Education Ombudsman
that relate to the complaint.
(2) The Education Ombudsman may—
(a) make
and retain a record of information referred to in subsection (1); and
(b) make
copies of, or take extracts from, a document referred to in subsection (1)
and retain those copies or extracts.
33—Splitting or joining of complaints
(1) If it is administratively or otherwise
appropriate to do so, the Education Ombudsman may determine that a complaint
that—
(a) deals
with more than one subject matter; or
(b) deals
with more than one set of circumstances; or
(c) makes
allegations against more than one education service provider; or
(d) makes
more than one allegation against an education service provider; or
(e) for
any other reason is susceptible to being dealt with in separate parts,
be treated as 2 or more complaints for the purposes of this Act.
(2) If it is administratively or otherwise
appropriate to do so, the Education Ombudsman may determine that 2 or more
complaints that—
(a) deal
with the same subject matter; or
(b) deal
with the same set of circumstances; or
(c) make
allegations against the same education service provider; or
(d) for
any other reasons are susceptible to amalgamation,
be treated as 1 complaint for the purposes of this Act.
(3) The
Education Ombudsman may give such directions or make such incidental
determinations as the Education Ombudsman thinks necessary or convenient in
view of a determination under subsection (1) or (2).
(4) A
determination or direction of the Education Ombudsman will have effect
according to its terms.
(5) The
Education Ombudsman must not make a determination under subsection (1) or
(2) if it appears to the Education Ombudsman that any attempt at resolution or
conciliation is likely to be prejudiced by the making of the determination.
Division 3—No further action on complaint
34—No further action on complaint
(1) The Education Ombudsman may at any stage of
proceedings under this Act determine to take no further action on a complaint,
or to suspend action on a complaint, if the Education Ombudsman considers or is
satisfied that—
(a) the
complainant is not entitled to make the complaint under this Act; or
(b) the
complaint does not disclose a ground of complaint under this Act; or
(c) the
matter should be determined by way of legal proceedings; or
(d) proceedings
that relate to the subject matter of the complaint have been commenced before a
tribunal, authority or other person or body; or
(e) the
complainant has been given reasonable explanations or information and there
would be no benefit in further entertaining the complaint; or
(f) the
complainant is seeking to act on a ground that should have been disclosed by
the complainant at an earlier time in accordance with the requirements of
section 27(2); or
(g) the
complaint lacks substance, is unnecessary or unjustifiable, or is frivolous,
vexatious or not made in good faith; or
(h) the
complainant has failed, without good reason, to comply with a requirement under
this Act within a reasonable time, or to take a reasonable step in connection
with making the complaint or proceeding with the complaint under this Act; or
(i) the
commencement or continuance of proceedings on the complaint would otherwise be
an abuse of the processes under this Act; or
(j) the
complaint has been resolved or abandoned; or
(k) there
is some other reasonable cause that justifies the discontinuance or suspension
of proceedings under this Act,
(and such a determination will have effect according to its
terms).
(2) The
Education Ombudsman must take no further action on a complaint if the Education
Ombudsman is satisfied that all issues arising out of the subject matter of the
complaint have been adjudicated by a court, tribunal, authority or other person
or body acting under a law of the State, another State, a Territory or the
Commonwealth.
(3) The
Education Ombudsman must suspend action on a complaint if the Education
Ombudsman is satisfied that proceedings that relate to the subject matter of
the complaint have been commenced before the court.
(4) The Education Ombudsman must, in a case
where subsection (1), (2) or (3) applies, give written notice relating to
the matter—
(a) to
the complainant; and
(b) except
where notice of the complaint has not been given to the education service
provider, to the education service provider.
(5) The Education Ombudsman may recommence
action on a suspended complaint for any reasonable cause by giving written
notice—
(a) to
the complainant; and
(b) to
the education service provider.
(1) A
complainant may withdraw a complaint at any time by written notice to the
Education Ombudsman.
(2) If a complaint is withdrawn—
(a) any
investigation under this Act in relation to the matter will cease unless the
Education Ombudsman has determined to conduct or continue an investigation
under section 44(1)(c); and
(b) the
Education Ombudsman must—
(i) if
the education service provider has been notified of the receipt of the
complaint—notify that provider of the withdrawal within 14 days; and
(ii) if
the Education Ombudsman has determined to conduct or continue an investigation
under section 44(1)(c)—advise the education service provider about the
effect of the determination despite the withdrawal of the complaint.
(3) If
the Education Ombudsman has referred a complaint to another person or body
under this Act, the withdrawal of that complaint under subsection (1) does
not affect the performance and exercise by the person or body of his, her or
its functions and powers in respect of the matters raised by or in the
complaint.
Part 5—Conciliation of complaints
(1) The function of a conciliator is to
encourage the settlement of a complaint by—
(a) arranging
discussions or negotiations between the complainant and the education service
provider;
(b) assisting
in the conduct of those discussions or negotiations;
(c) assisting
the complainant and the education service provider to reach agreement;
(d) assisting
in the resolution of the complaint in any other way.
(2) A
conciliator may, if the conciliator thinks it appropriate to do so, undertake a
conciliation without bringing the parties together.
(1) Before
the conciliation of a complaint begins, the Education Ombudsman must identify
and inform the conciliator about any issue raised by the complaint that the
Education Ombudsman considers involves the public interest.
(2) At
the start of the conciliation, the conciliator must draw any issues involving
the public interest of which he or she has been informed under
subsection (1) to the attention of the complainant and the education
service provider.
(3) In
the course of the conciliation, the conciliator must (at an appropriate time)
draw to the attention of the parties any issues involving the public interest
that the conciliator considers are raised by the complaint.
(4) The
conciliator must report to the Education Ombudsman any issue involving the
public interest that the conciliator considers is raised by the complaint (other
than an issue identified under subsection (1)).
(5) The
Education Ombudsman may, with respect to any issue that the Education Ombudsman
considers involves the public interest, consult with any other person or body
despite the fact that a conciliation may be proceeding.
(1) A
party to a conciliation may be assisted by another person.
(2) However,
a party cannot be assisted by a particular person if the conciliator has
directed that that person not be allowed to act in the particular matter.
(3) A
party in a conciliation process may not be represented by another person except
where the Education Ombudsman is satisfied that such representation is likely
to assist substantially in resolving the complaint.
(1) Without
limiting subsection (2), a conciliator must provide to the Education
Ombudsman a written report of the progress of a conciliation when requested to
do so by the Education Ombudsman.
(2) A conciliator must provide to the Education
Ombudsman a written report of the results of a conciliation when the
conciliator is satisfied—
(a) that
the complainant and the education service provider have reached agreement on
all issues raised by a complaint on which the conciliator considers agreement
to be possible; or
(b) that
an agreement between the complainant and education service provider is not
possible, or is not possible to reach within a reasonable period of time.
40—Conciliation may be brought to an end
(1) A
conciliator may end a conciliation for any reasonable cause at any reasonable
time.
(2) A
conciliation must be brought to an end at the direction of the Education
Ombudsman.
(3) A conciliation must be brought to an end if
the conciliation reveals, in the opinion of the conciliator or the Education
Ombudsman—
(a) the
existence of a significant issue of public interest or importance; or
(b) a
significant question as to the practice of an education service provider.
(4) A
conciliation must be brought to an end at the request of a party to the
conciliation.
(5) If a conciliation is brought to an end
without resolution of all relevant matters, the Education Ombudsman may—
(a) refer
the complaint to another conciliator; or
(b) investigate
the complaint under Part 6; or
(c) refer
the complaint to another person or body; or
(d) decide
to take no further action on the complaint.
41—Privilege and confidentiality
(1) Anything
said or done during conciliation under this Part, other than something that
reveals a significant issue of public safety, interest or importance, is not to
be disclosed in any other proceedings (whether under this or any other Act or
law) except by consent of all parties to the conciliation.
(2) Except where a disclosure is authorised
under this Part, a conciliator must not disclose information gained during
conciliation—
(a) in
any further conciliation; or
(b) to any person appointed, employed or
engaged for the purposes of this Act.
Maximum penalty: $5 000.
(1) The
Education Ombudsman may appoint a professional mentor to be available to advise
a conciliator in the performance of his or her functions.
(2) A
conciliator may discuss any matter arising in relation to the performance of
his or her functions with a professional mentor.
(3) A professional mentor must not disclose to
a third person (other than the Education Ombudsman) information that was gained
by a conciliator during conciliation and communicated by the conciliator to the
professional mentor.
Maximum penalty: $5 000.
(1) Any
agreement reached between a complainant and an education service provider in
the course of the conciliation process may be made in a binding form.
(2) However, an agreement is not binding unless
it is—
(a) in
writing; and
(b) entered
into within 14 days after the verbal agreement is reached in the course of the
conciliation.
(3) Subsection (1)
does not affect the effectiveness of any agreement reached outside the
conciliation process.
(4) A
conciliator must not be a party to any agreement between a complainant and an
education service provider relating to a matter that has been dealt with in a
process of conciliation.
Division 1—Application of Part
44—Matters that may be investigated
(1) The Education Ombudsman may investigate—
(a) any
matter specified in a written direction given by the Minister; and
(b) a
complaint that the Education Ombudsman has determined to investigate under this
Act; and
(c) an
issue or question arising from a complaint if it appears to the Education
Ombudsman—
(i) to
be a significant issue of public interest or importance; or
(ii) to
be a significant question as to the practice of an education service provider;
and
(d) on
his or her own motion, any other matter relating to the provision of education
services in South Australia.
(2) An investigation under
subsection (1)(c) may be carried out whether or not—
(a) the
process of assessment of the relevant complaint has been completed; or
(b) any
process of conciliation of the relevant complaint has been completed; or
(c) the
relevant complaint has been withdrawn; or
(d) the
Education Ombudsman has decided not to take action (or further action) on the
relevant complaint.
(3) Despite
subsection (2), an investigation referred to in subsection (1)(c)
should not be carried out to the extent that it interferes with a process of
conciliation.
(4) The
Education Ombudsman is not required to cease an investigation referred to in
subsection (1)(b) or (c) only because the relevant complaint has been
resolved.
(5) Without
limiting the operation of a preceding subsection, an investigation under
subsection (1)(c) may be carried out on the basis of fresh evidence that
comes to the attention of the Education Ombudsman following the completion of a
particular investigation.
The powers conferred by this Part may be exercised only for
purposes of an investigation.
Division 2—Conduct of investigations
(1) An
investigation is to be conducted in such manner as the Education Ombudsman
considers appropriate.
(2) The
Education Ombudsman may, in conducting an investigation under this Part, obtain
expert advice, or any other advice or support, in order to assist the Education
Ombudsman in the investigation.
(3) The
Education Ombudsman may, at any time, decide to attempt to deal with a
complaint by conciliation.
(4) The
Education Ombudsman may, in attempting conciliation under subsection (3),
act personally or through a member of his or her staff.
(5) The
Education Ombudsman may, if satisfied that the subject of a complaint has been
properly resolved by conciliation under subsection (3), determine that the
complaint should not be further investigated under this Part.
(6) Anything
said or done during conciliation under subsection (3), other than
something that reveals a significant issue of public interest or importance, is
not to be disclosed in any other proceedings (whether under this or any other
Act or law) except by consent of all parties to the conciliation.
(1) Subject
to subsection (2), a person required to appear or to produce documents
under this Part may be assisted or represented by another person.
(2) The
Education Ombudsman may determine whether any person involved in proceedings
under this Part may have legal or other representation during the conduct of an
investigation or proceedings relating to an investigation.
(3) The
Education Ombudsman must, in making any determination under
subsection (2), to such extent as is reasonably practicable, have regard
to the need to ensure that representation is balanced between the parties and
that any determination is fair to all persons who are involved in proceedings
under this Part.
48—Use and obtaining of information
(1) If
the Education Ombudsman has obtained a document or information under or in
connection with the operation of this Act, the Education Ombudsman may use that
document or information for the purposes of this Part.
(2) If the Education Ombudsman has reason to
believe that a person is capable of providing information or producing a
document relevant to an investigation, the Education Ombudsman may, by notice
in writing provided to the person, require the person to do one or more of the
following:
(a) to
provide that information to the Education Ombudsman in writing signed by that
person or, in the case of a body corporate, by an officer of the body
corporate;
(b) to
produce that document to the Education Ombudsman;
(c) to
attend before a person specified in the notice and answer questions or produce
documents relevant to the investigation.
(3) A
notice under subsection (2) is to specify the period within which, or the
time, day and place at which, the person is required to provide the information
or document, or to attend.
(4) A
notice under subsection (2) must provide a period of time for compliance
with a requirement under that subsection that has been determined by the
Education Ombudsman to be reasonable in the circumstances.
(5) A person must comply with a requirement
under subsection (2).
Maximum penalty: $5 000.
(6) If
a document is produced in accordance with a requirement under this section, the
Education Ombudsman or other appropriate person may take possession of, make
copies of, or take extracts from, the document.
49—Power to examine witnesses etc
(1) The
Education Ombudsman, or a person who is to receive information under
section 48(2), may administer an oath or affirmation to a person required
to attend before him or her under this Part and may examine the person on oath
or affirmation.
(2) The Education Ombudsman may require a
person to verify by statutory declaration—
(a) any
information or document produced under this Part; or
(b) a
statement that the person has no relevant information or documents or no
further relevant information or documents.
(3) A person must comply with a requirement
under subsection (2).
Maximum penalty: $5 000.
(1) On the application of the Education
Ombudsman, a magistrate may issue a warrant if the magistrate is satisfied that
there are reasonable grounds—
(a) for
believing that entry and inspection of premises are necessary to enable the
Education Ombudsman to carry out an investigation under this Part; or
(b) for
suspecting that there may be on premises a document or other thing relevant to
a matter the Education Ombudsman is investigating under this Part.
(2) A warrant authorises a person named in the
warrant, and any person assisting that person, with such force as is necessary—
(a) to
enter and remain in the premises specified in the warrant; and
(b) to
search those premises and any person or thing in those premises; and
(c) to
break open and search anything in those premises in which any document or other
thing relevant to the investigation may be contained; and
(d) to
take photographs; and
(e) to
seize and remove anything in those premises which that person has reasonable
grounds for believing is relevant to the investigation; and
(f) to
examine, seize and remove, make copies of, or take extracts from, any document
in those premises which that person has reasonable grounds for believing is
relevant to the investigation; and
(g) to
require an education service provider or any other person employed in those
premises to provide information by answering questions which that person
considers relevant to the investigation.
(3) A warrant must—
(a) be
in a prescribed form; and
(b) specify
the premises in respect of which it is made.
(4) A
warrant has effect for a period of 30 days after the day on which it is issued.
A person required to attend before the Education Ombudsman or
another person under this Part is entitled to be paid the expenses and
allowances that the Education Ombudsman may allow.
52—Reference to another authority for investigation
(1) If
the Education Ombudsman considers that a matter raised by, or during the course
of, an investigation should be investigated by the State Ombudsman or another
person or body that has functions under any law of South Australia, another
State, a Territory or the Commonwealth, the Education Ombudsman may refer the
matter to the State Ombudsman or other person or body (as the case requires)
for investigation.
(2) The
Education Ombudsman's powers to investigate a matter are not affected by the
matter having been referred for investigation under subsection (1).
53—Possession of document or other seized item
(1) If
the Education Ombudsman or another person has taken possession of or seized a
document or other thing under this Part, the Education Ombudsman may retain
possession of the document or other thing for such period as may be necessary
for the purposes of an investigation.
(2) If the Education Ombudsman or another
person has taken possession of a document, the Education Ombudsman must—
(a) provide
the person from whom it was taken with a copy of the document as soon as practicable
after it was taken; and
(b) allow
a person who would be entitled to inspect the document if it were not in the
possession of the Education Ombudsman to inspect, make a copy of, or take an
extract from, it at any reasonable time.
(1) A
person is not obliged to answer a question or to provide or produce, or provide
a copy of, any information or document under this Part if to do so might tend
to incriminate the person or make the person liable to a criminal penalty.
(2) A
person is not obliged to provide information that is privileged on the ground
of legal professional privilege.
Division 4—Action on investigation
(1) The Education Ombudsman—
(a) may
prepare a report of his or her findings and conclusions at any time during an
investigation; and
(b) must
prepare such a report at the conclusion of an investigation.
(2) The
Education Ombudsman may provide copies of a report to such persons as the
Education Ombudsman thinks fit.
(3) A
report may contain information, comments, opinions and recommendations for
action.
(4) No
action lies against the Education Ombudsman in respect of the contents of a
report under this section.
56—Notice of action to providers
(1) If, after investigating a complaint, the
Education Ombudsman decides that the complaint is justified but appears to be
incapable of being resolved, the Education Ombudsman may—
(a) provide
to the education service provider a notice of recommended action; and
(b) advise
the complainant of the provision of the notice.
(2) A notice must set out—
(a) the
particulars of the complaint; and
(b) the
reasons for making the decision referred to in subsection (1); and
(c) any
action that the Education Ombudsman considers the education service provider
should take in order to remedy each unresolved grievance disclosed by the
complaint.
(3) The
Education Ombudsman must then allow the service provider at least 28 days to
make representations in relation to the matter.
(4) A
service provider may, in making representations under subsection (3),
advise the Education Ombudsman of what action (if any) the service provider has
taken, or intends to take, in response to the matters raised in the notice.
(5) After
receipt of representations under subsection (3), or after the expiration
of the period allowed under that subsection, the Education Ombudsman may
publish a report or reports in relation to the matter in such manner as the
Education Ombudsman thinks fit.
(6) The
Education Ombudsman must, before publishing a report under subsection (5),
provide a copy of the report to the relevant education service provider and
then allow the service provider at least 14 days to make representations in
relation to the content of the report.
(7) A
report under this section may include such material, comments, commentary,
opinions or recommendations as the Education Ombudsman considers appropriate.
(8) The
Education Ombudsman may provide copies of a report to such persons as the
Education Ombudsman thinks fit.
(9) The
Education Ombudsman must provide a copy of a report to any complainant and
service provider that has been a party to the relevant proceedings.
(10) No
action lies against the Education Ombudsman in respect of the contents of any
document published by the Education Ombudsman under this section.
(1) An
education service provider who is named in a report published by the Education
Ombudsman under this Division may appeal to the Administrative and Disciplinary
Division of the District Court (the Court) against any aspect of
the procedures of the Education Ombudsman relating to the preparation of that
report that is not procedurally fair.
(2) An
appeal must be made within 14 days after the service provider receives a copy
of the relevant report from the Education Ombudsman.
(3) The Court may, on an appeal—
(a) determine
that the report should stand; or
(b) remit
the matter to the Education Ombudsman for further consideration in accordance
with any directions of the Court; or
(c) direct
the Education Ombudsman to take steps specified by the Court (which may include
the publication of a new or revised report or other statements or materials).
Part 7—Education Services Advisory Council
(1) The
Education Services Advisory Council is established.
(2) The Council will consist of the following members
appointed by the Minister:
(a) a
presiding member; and
(b) 2
persons who, in the opinion of the Minister, are qualified, by reason of their
experience and expertise, to represent the interests of users of pre-schools;
and
(c) 1
person who, in the opinion of the Minister, is qualified, by reason of his or
her experience and expertise, to represent the interests of users of primary
schools; and
(d) 1
person who, in the opinion of the Minister, is qualified, by reason of his or
her experience and expertise, to represent the interests of users of secondary
schools; and
(e) 2
persons who, in the opinion of the Minister, are qualified, by reason of their
experience and expertise, to represent the interests of users of non-government
schools; and
(f) 3
persons who, in the opinion of the Minister, are qualified, by reason of their
experience and expertise, to represent the interests of the public.
(3) The
Minister may appoint a suitable person to be the deputy of a member of the
Council during any period of absence of the member (and a reference in this Act
to a member of the Council will be taken to include a reference to a deputy
while acting as a member of the Council).
(1) A
member of the Council will be appointed on conditions determined by the
Minister and for a term, not exceeding 3 years, specified in the instrument of
appointment and, at the expiration of a term of office, is eligible for
reappointment.
(2) The Minister may remove a member of the
Council from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
misconduct; or
(c) for
failure or incapacity to carry out duties satisfactorily.
(3) The office of a member of the Council
becomes vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice to the Minister; or
(d) is
removed from office under subsection (2).
(4) A
member of the Council is entitled to allowances and expenses determined by the
Minister.
(1) The functions of the Council are—
(a) to
advise the Minister and the Education Ombudsman in relation to the redress of
grievances relating to education services or their provision; and
(b) to
advise the Minister on—
(i) the
means of educating and informing users, providers and the public on the
availability of means for making complaints or expressing grievances in
relation to education services or their provision; and
(ii) the
operation of this Act; and
(iii) any
other matter on which the Minister requests the advice of the Council; and
(c) to
refer to the Education Ombudsman any matter that may properly be dealt with or
considered by the Education Ombudsman under this Act and that, in the view of
the Council, should be so referred.
(2) Subsection (1) does not authorise the
Council—
(a) to
investigate a complaint; or
(b) to
review a decision of the Education Ombudsman to investigate, not to
investigate, or to discontinue investigation of a particular complaint; or
(c) to
review a finding, recommendation or other decision of the Education Ombudsman,
or of any other person, in relation to a particular investigation or complaint.
(1) The
presiding member will preside at a meeting of the Council or, in the absence of
that member, a member chosen by those present will preside.
(2) A
majority of the members of the Council constitute a quorum of the Council (and
no business may be transacted at a meeting unless a quorum is present).
(3) Each
member present at a meeting of the Council has 1 vote on any question arising
for decision and, if the votes are equal, the member presiding at the meeting
has a second, or casting, vote.
(4) The
Council must have accurate minutes kept of its proceedings.
(5) Subject
to this Act, the Council may determine its own procedures.
(1) A member of the Council who has a direct or
indirect personal or pecuniary interest in a matter under consideration by the
Council—
(a) must,
as soon as he or she becomes aware of his or her interest, disclose the nature and
extent of the interest to the Council; and
(b) must not take part in any deliberations or
decision of the Council on the matter and must be absent from the room when any
deliberations are taking place or decision is being made.
Maximum penalty: $5 000.
(2) A
disclosure under this section must be recorded in the minutes of the Council.
(1) The Minister or the Education Ombudsman may
delegate a power or function vested in or conferred on the Minister or the
Education Ombudsman (as the case may be) under this Act—
(a) to
a particular person or body; or
(b) to
the person for the time being occupying a particular office or position.
(2) A
power or function delegated under this section may, if the instrument of
delegation so provides, be further delegated.
(3) A delegation—
(a) may
be absolute or conditional; and
(b) does
not derogate from the power of the delegator to act in a matter; and
(c) is
revocable at will by the delegator.
(4) In
any legal proceedings an apparently genuine certificate, purportedly signed by
the Minister or the Education Ombudsman, containing particulars of a delegation
under this section, will, in the absence of proof to the contrary, be accepted
as proof that the delegation was made in accordance with the particulars.
64—Adverse comments in reports
(1) The Education Ombudsman must not include in
a report under this Act a comment adverse to a person or body identifiable from
the report except where the person or body has been given a reasonable
opportunity—
(a) to
make a submission to the Education Ombudsman in relation to the proposed
comment; and
(b) to
provide to the Education Ombudsman a written statement in relation to it.
(2) If
a person or body referred to in subsection (1) so requests, the Education
Ombudsman must include in the report the statement given under
subsection (1)(b) or a fair summary of it.
(3) The Education Ombudsman is not required to
provide to a person or body the opportunity referred to in subsection (1)
if the Education Ombudsman believes, on reasonable grounds, that awareness of
the proposed comment by any person would directly or indirectly—
(a) result
in a person receiving an education service of a lower standard than would
otherwise have been provided; or
(b) prejudice
the fair assessment of a complaint or an investigation under this Act.
65—Protection of identity of service user or complainant from service provider
Despite any other provision of this Act,
the Education Ombudsman may determine not to disclose to an education service
provider information that would enable an education service user or a
complainant to be identified if the Education Ombudsman believes, on reasonable
grounds, that the disclosure would, directly or indirectly—
(a) result
in a person receiving an education service of lower standard than would
otherwise have been provided; or
(b) prejudice
the fair assessment of a complaint or an investigation under this Act.
66—Preservation of confidentiality
(1) A person must not record, disclose or use
confidential information gained by the person through involvement in the
administration of this Act, unless the person does so—
(a) when
necessary for the purposes of this Act; or
(b) when
expressly authorised or required under this or another Act; or
(c) when
expressly authorised, in writing, by the person to whom it relates; or
(d) when
required to do so by a court or tribunal constituted by law; or
(e) when expressly authorised or required under
the regulations.
Maximum penalty: $5 000.
(2) For the purposes of this section, the
following persons are involved in the administration of this Act:
(a) the
Education Ombudsman;
(b) a
conciliator;
(c) a
professional mentor;
(d) another
staff member;
(e) a
member of the Council;
(f) a
member of a committee established under this Act.
(3) This
section does not apply to the recording, disclosure or use of statistical or
other information that could not reasonably be expected to lead to the
identification of a person.
67—Offence relating to intimidation
A person must not persuade or attempt to
persuade by threat or intimidation another person—
(a) to
refrain from making a complaint under this Act; or
(b) to
withdraw a complaint under this Act; or
(c) to
fail to co-operate with the Education Ombudsman or another person who is
performing or exercising a function or power under this Act; or
(d) to
fail to provide information or a document to the Education Ombudsman or any
other person who is performing or exercising a function or power under this
Act; or
(e) to provide information or a document that
is false or misleading in a material particular, or to provide information or a
document in a manner that will make the information or document false or
misleading in a material particular, to the Education Ombudsman or another
person performing or exercising a function or power under this Act.
Maximum penalty: $10 000.
68—Offence relating to reprisals
(1) A person must not treat another person
unfavourably on the ground that a person—
(a) has
made a complaint under this Act; or
(b) has
co-operated with the Education Ombudsman or any other person who performs or
exercises a function or power under this Act; or
(c) has
provided information or documents to the Education Ombudsman or any other
person who performs or exercises a function or power under this Act,
or on the ground that he or she knows that
a person intends to do any of these things, or suspects that a person has done,
or intends to do, any of these things.
Maximum penalty: $10 000.
(2) It
is sufficient for a contravention of subsection (1) if the ground
specified in subsection (1) is a significant factor in inducing the person
to take the particular action against the other person.
(3) Unfavourable treatment on the ground that a
person—
(a) has
made a false allegation; or
(b) has
not acted in good faith,
does not constitute a contravention of subsection (1).
69—Offences relating to obstruction etc
A person must not, without reasonable
excuse, obstruct, hinder, resist or improperly influence, or attempt to
obstruct, hinder, resist or improperly influence, the Education Ombudsman or
any other person in the performance or exercise of a function or power under
this Act.
Maximum penalty: $10 000.
70—Offences relating to the provision of information
A person must not—
(a) provide
to the Education Ombudsman or any other person who is performing or exercising
a function or power under this Act information that the person knows is false
or misleading in a material particular; or
(b) refuse or fail to include in information
provided to a person who is performing or exercising a function or power under
this Act other information without which the information provided is, to the
knowledge of the person, false or misleading in a material particular.
Maximum penalty: $10 000.
71—Protection from civil actions
(1) A person is not liable in respect of loss,
damage or injury of any kind suffered by another person as a result of any of
the following done in good faith:
(a) the
making of a complaint;
(b) the
making of a statement, the provision of any information whether by answering a
question or otherwise or the provision of any document for the purposes of this
Act to the Education Ombudsman, a conciliator or another person authorised to
receive the statement, information or document;
(c) the
making of a report under this Act;
(d) the
provision of a copy of a report to a person to whom it may be provided under
this Act;
(e) the
doing, or omission, of anything in the performance or exercise of a function or
power under this Act.
(2) A
person who does anything in accordance with this Act, or as required by or
under this Act, cannot, by so doing, be held to have breached any code of
professional etiquette or ethics, or to have departed from any acceptable form
of professional conduct.
(1) In
performing functions and exercising powers under this Act, the Education
Ombudsman must have regard to the rules of natural justice.
(2) Subject to subsection (1), the
Education Ombudsman—
(a) must
proceed with as little formality and technicality and with as much expedition
as the requirements of this or any other Act and a proper consideration of the
matter permit; and
(b) is
not bound by rules of evidence but may inform himself or herself of any matter
in any manner that he or she considers appropriate.
73—Determining reasonableness of education service provider's actions
(1) In determining whether an education service
provider has acted reasonably, the Education Ombudsman must have regard to—
(a) the
Charter; and
(b) the
principles specified in section 23; and
(c) the
generally accepted standard of education service delivery expected of a
provider of that kind,
and may have regard to any other matter or information the
Education Ombudsman considers relevant.
(2) The
Education Ombudsman must, in making a decision on a complaint under this Act,
take into account the level of resources reasonably available to the education
service provider.
74—Interaction with Ombudsman Act 1972
Despite any other provision of this Act or
the Ombudsman Act 1972—
(a) a
matter that may be (or has been) the subject of a complaint under this Act,
being an administrative act of an agency to which that Act applies, may be
referred to the State Ombudsman under section 14 of that Act on the basis
that the relevant House of Parliament or committee considers that the matter
involves a significant issue of public interest or importance; and
(b) a
matter that may be (or has been) the subject of a complaint under this Act,
being an administrative act of an agency to which that Act applies, may be
referred to the State Ombudsman under section 15(3) of that Act and the
State Ombudsman may proceed to deal with the matter if the State Ombudsman
considers that the matter may involve a significant issue of public interest or
importance; and
(c) the
State Ombudsman may conduct an investigation of an act of the Education
Ombudsman under that Act even if the matter involves an education service
provider that is not an agency to which that Act applies (and may, in
conducting the investigation, look at the substance of the original complaint,
and consider or review any other matter that may be relevant to the
investigation, even if the subject matter of the original complaint did not
involve an administrative act within the meaning of that Act but may not make a
determination or recommendation concerning the substance of the original
complaint to the extent that that matter did not involve an administrative act
of an agency to which that Act applies except to set aside (if the State
Ombudsman thinks fit) a determination or recommendation of the Education
Ombudsman at the first instance).
(1) The
Governor may make regulations as contemplated by this Act, or as necessary or
expedient for the purposes of this Act.
(2) The regulations may—
(a) provide
for the form and service of documents under this Act; and
(b) provide
for the provision of statistical or other data or information to the Education
Ombudsman; and
(c) refer
to or incorporate, wholly or partially and with or without modification, a
code, standard or other document prepared or published by a prescribed body,
either as in force at the time the regulations are made or as in force from
time to time; and
(d) be
of general or limited application; and
(e) make
different provision according to the persons, things or circumstances to which
they are expressed to apply; and
(f) provide
that a specified provision of this Act does not apply, or applies with
prescribed variations, in any circumstance or situation (or circumstance or
situation of a prescribed class) specified by the regulations, subject to any
condition to which the regulations are expressed to be subject; and
(g) provide
that any matter or thing is to be determined, dispensed with, regulated or
prohibited according to the discretion of the Minister, the Education Ombudsman
or another prescribed authority; and
(h) impose
penalties, not exceeding $5 000, for a contravention of, or failure to comply
with, a regulation.
(1) The Minister must, as soon as practicable
after the third anniversary of the commencement of this Act, appoint a person
to prepare a report on—
(a) the
operation of this Act over its first 3 years and the extent to which the
objects of this Act have been attained; and
(b) other
matters determined by the Minister to be relevant to a review of this Act.
(2) The
person must report to the Minister within 6 months after his or her
appointment.
(3) The
Minister must, within 12 sitting days after receiving the report under this
section, have copies of the report laid before both Houses of Parliament.
(1) A
complaint may be made and dealt with under this Act even though the
circumstances that give rise to the complaint occurred before the commencement
of this Act if the complainant became aware of those circumstances not earlier
than 2 years before the commencement of this Act.
(2) The
State Ombudsman may, if the State Ombudsman thinks fit and with the agreement
of the Education Ombudsman, transfer to the Education Ombudsman the conduct of
an investigation of a complaint made to the State Ombudsman before the
commencement of this Act.
(3) The
Education Ombudsman may adopt any findings or determinations of the State
Ombudsman that may be relevant to an investigation transferred under
subsection (2).
(4) The
consent of the complainant is not required before an investigation may be
transferred to the Education Ombudsman under subsection (2).
(5) The regulations may make other provisions of a saving or transitional nature.