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TASMANIA
__________
OMBUDSMAN AMENDMENT BILL 2005
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 4 substituted
4. Application of Act
4A. Ombudsman not to investigate certain complaints
6. Section 8A inserted
8A. Deputy Ombudsman
7. Section 12 amended (Matters subject to investigation)
8. Section 14 amended (Complaints)
9. Section 17 amended (Freedom of disclosure and communication
to Ombudsman)
10. Section 20A inserted
20A. Ombudsman may make preliminary inquiries
11. Section 21 amended (Refusal to investigate complaints)
12. Section 22 amended (Notice of refusal to investigate)
13. Part III, Division 2A inserted
Division 2A - Conciliation
22A. Conciliation of complaints
22B. Conciliation
22C. Unsuccessful conciliation attempt
22D. Conciliation proceedings not admissible
22E. Cost of conciliation
[Bill 24]-VI
14. Section 23 substituted
23. Ombudsman to give notice of investigation
23A. Procedure on investigation
15. Part III, Division 3A: Heading inserted
Division 3A - Secrecy and obstruction of Ombudsman
16. Section 26 amended (Secrecy, &c.)
17. Section 27 amended (Obstruction of Ombudsman, &c.)
18. Section 28 amended (Procedure on completion of investigation)
19. Section 33 amended (Protection of Ombudsman and officers)
20. Section 33A inserted
33A. Exemption from Freedom of Information Act 1991
21. Schedule 1 repealed
22. Schedule 2 amended (Excluded Administrative Action)
2
OMBUDSMAN AMENDMENT BILL 2005
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Ombudsman Act 1978
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Ombudsman
Amendment Act 2005.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Ombudsman Act 1978* is
referred to as the Principal Act.
*No. 82 of 1978
[Bill 24] 3
s. 4 No. Ombudsman Amendment 2005
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of "complaint" in
subsection (1):
"conciliator" means a person
authorised in accordance with
section 22A to act as a
conciliator;
"Deputy Ombudsman" means a
person appointed as Deputy
Ombudsman under section 8A;
(b) by inserting the following definition after
the definition of "functions" in
subsection (1):
"Government Business Enterprise"
means a Government Business
Enterprise within the meaning of
the Government Business
Enterprises Act 1995;
(c) by inserting the following definition after
the definition of "Head of Agency" in
subsection (1):
"local authority" includes -
(a) a single authority,
controlling authority or
joint authority established
under Part 3 of the Local
Government Act 1993;
and
4
2005 Ombudsman Amendment No. s. 4
(b) any other body or
authority, constituted or
established by or under an
Act, having power to
levy, or cause to be
levied, a rate on any land;
(d) by omitting the definition of "public
authority" from subsection (1) and
substituting the following definition:
"public authority" means a public
authority referred to in section 4;
(e) by inserting the following definitions
after the definition of "responsible
Minister" in subsection (1):
"State-owned company" means a
company incorporated under the
Corporations Act that is
controlled by -
(a) the Crown; or
(b) a Government Business
Enterprise; or
(c) a statutory authority; or
(d) another company which is
itself controlled by an
entity referred to in
paragraph (a), (b) or (c);
"statutory authority" means a body
or authority, whether
incorporated or not, that is
established, constituted or
continued by or under an Act or
5
s. 4 No. Ombudsman Amendment 2005
under the royal prerogative, being
a body or authority which, or of
which the governing authority,
wholly or partly comprises a
person or persons appointed by
the Governor, a Minister or
another statutory authority but
does not include a State Service
Agency;
(f) by omitting the definition of "tribunal"
from subsection (1) and substituting the
following definition:
"tribunal" means a person or body of
persons, which is not a court of
law or a tribunal constituted or
presided over by a judge of the
Supreme Court, who, in arriving
at the decision in question, is by
law required, whether by express
direction or not, to act in a
judicial manner to the extent of
observing one or more of the
rules of natural justice.
(g) by inserting in subsection (2)(a) "the
principal officer and" after "includes a
reference to";
(h) by inserting in subsection (2)(b) "a
principal officer and" after "includes a
reference to";
(i) by inserting the following subsection
after subsection (2):
(3) For the purpose of the definition
of "State-owned company" in
6
2005 Ombudsman Amendment No. s. 5
subsection (1), the provisions of
the Corporations Act relating to
control are taken to apply as if the
Crown, Government Business
Enterprise or statutory authority,
as the case may be, were a
corporation under that Act.
5. Section 4 substituted
Section 4 of the Principal Act is repealed and the
following sections are substituted:
4. Application of Act
(1) Subject to subsection (2), the following
persons, bodies and authorities are public
authorities for the purposes of this Act:
(a) a State Service Agency;
(b) the Police Service;
(c) a local authority;
(d) a body or authority, whether
incorporated or not, that is
constituted or established by or
under an Act for a public
purpose;
(e) a body or authority, whether
incorporated or not, whose
members or a majority of whose
members, are appointed by the
Governor or a Minister;
7
s. 5 No. Ombudsman Amendment 2005
(f) a person appointed to an office by
the Governor or a Minister under
an Act;
(g) a Government Business
Enterprise;
(h) a State-owned company;
(i) the University of Tasmania;
(j) any other prescribed body or
authority, whether incorporated
or not -
(i) to which any money is
paid by way of
appropriation from the
public account; or
(ii) over which the
Government or a Minister
exercises control.
(2) The following persons and bodies are not
public authorities for the purposes of this
Act:
(a) the Director of Public
Prosecutions;
(b) the Ombudsman;
(c) the Deputy Ombudsman;
(d) the Solicitor-General;
(e) the Auditor-General;
(f) the Tasmanian Audit Office;
8
2005 Ombudsman Amendment No. s. 5
(g) an officer performing functions
under the Parliamentary
Privilege Act 1898;
(h) a person appointed or employed
under the Governor of Tasmania
Act 1982;
(i) a judge of the Supreme Court;
(j) a Master of the Supreme Court;
(k) a magistrate of the Magistrates
Court;
(l) a court.
4A. Ombudsman not to investigate certain
complaints
(1) If a person makes a complaint to the
Ombudsman about an administrative
action taken by a public authority, the
Ombudsman may refuse to investigate
that complaint if the person has not
previously raised the complaint with the
public authority to which the complaint
relates.
(2) If a person makes a complaint to the
Ombudsman about an administrative
action taken by a public authority that is
also an energy entity as defined in the
Energy Ombudsman Act 1998, the
Ombudsman must refuse to investigate
that complaint if the complaint can be
made under that Act.
9
s. 6 No. Ombudsman Amendment 2005
6. Section 8A inserted
After section 8 of the Principal Act, the
following section is inserted in Part II:
8A. Deputy Ombudsman
(1) The Governor may appoint a State
Service officer or a State Service
employee to be Deputy Ombudsman and
that officer or employee is to hold that
office in conjunction with State Service
employment.
(2) If the Ombudsman is unable to perform
the functions of his or her office, the
Deputy Ombudsman may perform all the
functions of the Ombudsman.
7. Section 12 amended (Matters subject to
investigation)
Section 12 of the Principal Act is amended by
inserting after subsection (1) the following
subsections:
(1A) For the purpose of subsection (1),
administrative action is taken on behalf
of a public authority if it is taken in the
exercise of the powers or in the
performance of the functions of a public
authority by a person under contract
with, or otherwise acting under
instructions from -
(a) the public authority; or
(b) the Crown.
10
2005 Ombudsman Amendment No. s. 8
(1B) Subsection (1A) does not apply to
administrative action taken under a
contract made before the commencement
of the Ombudsman Amendment Act 2005.
8. Section 14 amended (Complaints)
Section 14(1) of the Principal Act is amended as
follows:
(a) by inserting "or orally" after "made in
writing";
(b) by inserting ", but the Ombudsman may
require an oral complaint to be confirmed
in writing" after "action".
9. Section 17 amended (Freedom of disclosure and
communication to Ombudsman)
Section 17 of the Principal Act is amended by
inserting "the making of preliminary inquiries
under section 20A or" after "restrict".
10. Section 20A inserted
After section 20 of the Principal Act, the
following section is inserted in Division 2:
20A. Ombudsman may make preliminary
inquiries
(1) The Ombudsman may make any
preliminary inquiries that he or she
considers necessary for the purpose of
11
s. 11 No. Ombudsman Amendment 2005
ascertaining if a complaint should be
investigated.
(2) A principal officer is to provide the
Ombudsman with any reasonable
assistance necessary to enable the
Ombudsman to make any preliminary
inquiries under subsection (1).
(3) If the Ombudsman has made preliminary
inquiries under subsection (1), the
Ombudsman may resolve the complaint
without the complaint being investigated
if, having regard to the nature and
seriousness of the complaint, the
Ombudsman believes the complaint may
be resolved expeditiously.
11. Section 21 amended (Refusal to investigate
complaints)
Section 21 of the Principal Act is amended by
omitting subsection (2).
12. Section 22 amended (Notice of refusal to
investigate)
Section 22(1) of the Principal Act is amended by
inserting "resolves a complaint under
section 20A(3)" after "entertain, a complaint,".
13. Part III, Division 2A inserted
After section 22 of the Principal Act, the
following Division is inserted in Part III:
12
2005 Ombudsman Amendment No. s. 13
Division 2A - Conciliation
22A. Conciliation of complaints
The Ombudsman, an officer of the
Ombudsman or any other person with
appropriate qualifications who is
authorised, in writing, by the
Ombudsman to act as a conciliator may
attempt to resolve, by conciliation, any
complaint that the Ombudsman believes
may be resolved in that way.
22B. Conciliation
(1) Participation in conciliation is voluntary
and a party may withdraw from
conciliation at any time.
(2) The Ombudsman, an officer of the
Ombudsman or a conciliator may
terminate conciliation at any time.
(3) The Ombudsman may regulate the
procedure for conciliation in any manner
he or she considers appropriate.
(4) Conciliation is to be held in private.
22C. Unsuccessful conciliation attempt
(1) If an attempt to deal with a complaint by
conciliation is unsuccessful, the
complaint is to be treated under this Part
as if the attempted conciliation had not
taken place.
13
s. 13 No. Ombudsman Amendment 2005
(2) An officer of the Ombudsman, or a
conciliator, involved in an unsuccessful
attempt at conciliation is excluded from
participating in any further investigation
of the complaint.
22D. Conciliation proceedings not admissible
(1) Evidence of anything said, written or
done during conciliation, or an attempted
conciliation, or any document prepared
for the purpose of conciliation is not
admissible -
(a) in any subsequent proceedings
held, or action taken, under this
Act in respect of a complaint; or
(b) in evidence in proceedings in a
court or before a person or body
authorised to hear and receive
evidence.
(2) A person may consent to the admission
of anything said, written or done or any
document prepared for the purpose of
conciliation if the thing that was said,
written or done or the document that was
prepared relates to that person.
22E. Cost of conciliation
The remuneration of a conciliator is to be
borne by the parties to the conciliation in
any proportions as the parties may agree
or, failing agreement, in equal shares or
14
2005 Ombudsman Amendment No. s. 14
as otherwise directed by the
Ombudsman.
14. Section 23 substituted
Section 23 of the Principal Act is repealed and
the following sections are substituted:
23. Ombudsman to give notice of investigation
(1) Before commencing an investigation
under this Act of an administrative action
taken by or on behalf of a public
authority, the Ombudsman must give
written notice of his or her intention to
carry out the investigation -
(a) to the principal officer of the
public authority; and
(b) to the complainant, if the
investigation is being made as a
result of a complaint.
(2) The Ombudsman is to notify a principal
officer and the responsible Minister
before the Ombudsman commences an
investigation of an administrative action
taken by or on behalf of a public
authority -
(a) on the Ombudsman's own
motion; or
(b) on a reference made under
section 15 or 16; or
(c) if section 24(1) applies.
15
s. 14 No. Ombudsman Amendment 2005
23A. Procedure on investigation
(1) Subject to this Act, the Ombudsman -
(a) may regulate the procedure in an
investigation in any manner he or
she considers appropriate; and
(b) is not required to hold a hearing
for an investigation; and
(c) may obtain information from any
persons in any manner he or she
considers appropriate; and
(d) may make any inquiries he or she
considers appropriate.
(2) The Ombudsman may take into account
in an investigation any information
obtained in the course of making
preliminary inquiries under section 20A.
(3) An investigation by the Ombudsman
under this Act is to be conducted in
private.
(4) The Ombudsman may determine -
(a) if any person may be represented,
by counsel or otherwise, at an
investigation; and
(b) if the person is allowed to be
represented, the conditions or
restrictions subject to which the
person may be represented.
(5) The Ombudsman is not to make a report
on an investigation that contains adverse
16
2005 Ombudsman Amendment No. s. 14
or derogatory comments in respect of a
person unless the Ombudsman has given
the person an opportunity, in respect of
the matter under investigation -
(a) to appear before him or her; or
(b) to make representations, either
orally or in writing.
(6) The Ombudsman is not to make a report
on an investigation that contains adverse
or derogatory comments in respect of a
public authority unless the Ombudsman
has given the relevant principal officer,
and the member, officer or employee of
the public authority principally
concerned in the taking of the
administrative action to which the
investigation relates, an opportunity -
(a) to appear before him or her; or
(b) to make representations, either
orally or in writing.
(7) If, during or after an investigation, the
Ombudsman is of the opinion that there
is evidence of a breach of duty or
misconduct on the part of any member,
officer or employee of a public authority,
and that, in all the circumstances, the
evidence is of sufficient force to justify
his or her doing so, the Ombudsman is to
bring the evidence -
(a) if the member, officer or
employee is the principal officer
of the public authority, to the
17
s. 15 No. Ombudsman Amendment 2005
notice of the responsible
Minister; and
(b) in any other case, to the notice of
the principal officer of the public
authority.
(8) The Ombudsman may, either before or
after the completion of an investigation,
discuss any matter that is relevant to the
investigation with a Minister concerned
with that matter.
15. Part III, Division 3A: Heading inserted
Part III of the Principal Act is amended by
inserting the following heading after section 25:
Division 3A - Secrecy and obstruction of Ombudsman
16. Section 26 amended (Secrecy, &c.)
Section 26 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "or an
officer of the Ombudsman" and
substituting ", an officer of the
Ombudsman or a conciliator";
(b) by omitting from subsection (5) "or an
officer of the Ombudsman" and
substituting ", an officer of the
Ombudsman or a conciliator";
(c) by omitting from subsection (5) "or such
an officer" and substituting ", officer of
the Ombudsman or conciliator";
18
2005 Ombudsman Amendment No. s. 17
(d) by omitting from subsection (6) "or an
officer of the Ombudsman" and
substituting ", an officer of the
Ombudsman or a conciliator".
17. Section 27 amended (Obstruction of Ombudsman,
&c.)
Section 27 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a) "or any
officer of the Ombudsman," and
substituting "an officer of the
Ombudsman or a conciliator";
(b) by omitting from paragraph (b) "or an
officer of the Ombudsman" and
substituting ", an officer of the
Ombudsman or a conciliator";
(c) by omitting from paragraph (c) "or an
officer of the Ombudsman" and
substituting ", an officer of the
Ombudsman or a conciliator".
18. Section 28 amended (Procedure on completion of
investigation)
Section 28 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)
"subsection (1A) or" after "specified in";
(b) by inserting the following subsection
after subsection (1):
19
s. 19 No. Ombudsman Amendment 2005
(1A) In a case referred to in subsection
(1), the Ombudsman may resolve
a matter informally with the
relevant principal officer.
(c) by inserting in subsection (3) "and the
responsible Minister has been notified of
the investigation under section 23(2)"
after "subsection (2)";
(d) by inserting in subsection (5) "and the
responsible Minister" after "Premier".
19. Section 33 amended (Protection of Ombudsman and
officers)
Section 33 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "Neither
the Ombudsman nor any officer of the
Ombudsman shall be liable," and
substituting "The Ombudsman, an officer
of the Ombudsman or a conciliator is not
liable,";
(b) by omitting from subsection (2) "or any
officer of the Ombudsman" and
substituting ", an officer of the
Ombudsman or a conciliator".
20. Section 33A inserted
After section 33 of the Principal Act, the
following section is inserted in Part IV:
20
2005 Ombudsman Amendment No. s. 21
33A. Exemption from Freedom of Information Act
1991
The Freedom of Information Act 1991
does not apply to information, as defined
in that Act, in the possession of the
Ombudsman or an officer of the
Ombudsman if the information relates to
a complaint, preliminary inquiries, an
investigation, conciliation, report or
recommendation made under this or any
other Act.
21. Schedule 1 repealed
Schedule 1 to the Principal Act is repealed.
22. Schedule 2 amended (Excluded Administrative
Action)
Schedule 2 to the Principal Act is amended by
inserting after item 5 the following items:
6. Action taken by a tribunal or a member
of a tribunal in the performance of the
tribunal's decision making or
determination making functions.
7. Action taken by the Tasmanian Electoral
Commission established under the
Electoral Act 2004 or the Electoral
Commissioner appointed under that Act
that may be the subject of any
proceedings in the Supreme Court -
(a) under the Electoral Act 2004; or
21
s. 22 No. Ombudsman Amendment 2005
(b) under the Local Government Act
1993 in respect of a dispute about
the result of an election.
22 Government Printer, Tasmania