New South Wales: Ombudsman Act 1974 (NSW)

Ombudsman Act 1974 No 68 An Act to provide for the appointment of an Ombudsman; to define the functions of the Ombudsman; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act This Act may be cited as the Ombudsman Act 1974. 2 Commencement (1) This Act, Part 3 excepted, commences on the date of assent to this Act. (2) Part 3 commences on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Act binds Crown This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. 5 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— Aboriginal program, for Part 3B—see section 25K. administration includes administration of an estate or a trust whether involving the exercise of executive functions of government or the exercise of other functions. appointed day means the day appointed and notified under section 2 (2). conduct means— (a) any action or inaction relating to a matter of administration, and (b) any alleged action or inaction relating to a matter of administration. head means— (a) in relation to a public authority that is a Public Service agency or a person employed in a Public Service agency—the head of the agency, and (a1) in relation to a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013—the chief of staff of the office of that office holder, and (b) in relation to a public authority that is a local government authority, or a member or employee of a local government authority—the mayor (or other presiding officer) of the local government authority, and (c) in relation to a public authority that is a corporation sole, or who is a person employed by a corporation sole—the person constituting the corporation, and (d) in relation to a public authority that is any other body, whether incorporated or unincorporated, or who is a person employed by such a body—the chief executive officer of that body or, if the affairs of the body are directed by a governing body, the person who presides at meetings of that governing body, and (e) in any other case—the person prescribed by the regulations, or in the absence of any regulation prescribing a person, the person who, in the opinion of the Ombudsman, is the chief executive of the public authority. Joint Committee means the joint committee called the Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission, constituted under this Act. local government authority means a council, a county council or a joint organisation within the meaning of the Local Government Act 1993. medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW). person includes an unincorporated body of persons. public authority means the following— (a) any person appointed to an office by the Governor, (b) any statutory body representing the Crown, (c) any Public Service agency or any person employed in a Public Service agency, (d) any person in the service of the Crown or of any statutory body representing the Crown, (d1) any person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013, (e) an auditable entity within the meaning of the Government Sector Audit Act 1983, (f) a person entitled to be reimbursed from public funds for expenses associated with attending meetings or carrying out the business of a body constituted by an Act, (f1) any accreditation authority or registered certifier within the meaning of the Building and Development Certifiers Act 2018, (f2) any body declared by the regulations to be a public authority for the purposes of this Act, (g) any holder of an office declared by the regulations to be an office of a public authority for the purposes of this Act, (g1) any local government authority or any member or employee of a local government authority, (g2) an approved charitable organisation, within the meaning of the Prevention of Cruelty to Animals Act 1979, to the extent the organisation's conduct relates to the exercise of functions under that Act, (h) any person acting for or on behalf of, or in the place of, or as deputy or delegate of, any person described in any of the foregoing paragraphs. psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW). regulations means regulations made under this Act. responsible Minister means— (a) in relation to a public authority that is a Public Service agency or a person employed in a Public Service agency—the Minister responsible for that agency or, in the case where more than one Minister is responsible for that agency, the Minister who, in the opinion of the Ombudsman, is most nearly connected with the conduct of that agency, and (b) in relation to a public authority that is a local government authority or a member or employee of a local government authority—the Minister administering the Local Government Act 1993, and (c) in relation to a public authority, not referred to in paragraph (a) or (b), involved in the administration of an Act or part of an Act—the Minister administering the Act or the relevant part of the Act, and (c1) in relation to a public authority who is a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013—the Premier, and (d) in relation to any other public authority—the Minister who, in the opinion of the Ombudsman, is the most nearly concerned with the conduct of the public authority. Supreme Court means the Supreme Court of New South Wales. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A), (2) (Repealed) (3) A reference in this Act, except in section 37 (2) (e), to an officer of the Ombudsman includes a reference to an acting Ombudsman, a Deputy Ombudsman and an Assistant Ombudsman. (4) In this Act, a reference to— (a) a function includes a reference to a power, authority and duty, and (b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (5) Notes included in this Act do not form part of this Act. 5A References to Presiding Officers (1) In this Act, a reference to a Presiding Officer of a House of Parliament is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly. (2) If there is a vacancy in the office of President, the reference to the President is taken to be a reference to the Clerk of the Legislative Council. (3) If there is a vacancy in the office of Speaker, the reference to the Speaker is taken to be a reference to the Clerk of the Legislative Assembly. Part 2 The Ombudsman 6 Office of Ombudsman (1) The Governor may, on the recommendation of the Minister, appoint an Ombudsman on such terms and conditions as are specified in the instrument of appointment. (2) Subject to this Act, the Ombudsman holds office for such period, not exceeding seven years, as is specified in the instrument of his or her appointment and is eligible for re-appointment. (3) A person is not eligible for appointment as Ombudsman if the person— (a) is a member of the Legislative Council or the Legislative Assembly, or (b) is a member of a House of Parliament of another State or of the Commonwealth. (4) The Ombudsman vacates the office of Ombudsman— (a) (Repealed) (b) if he or she engages in any paid employment outside the duties of the office, or (c) if he or she is nominated for election as a member of the Legislative Council or the Legislative Assembly or as a member of a House of Parliament of another State or of the Commonwealth, or (d) if he or she resigns the office by instrument in writing addressed to the Governor and the Governor accepts the resignation. (5) The Ombudsman may, at any time, be removed from office by the Governor upon the address of both Houses of Parliament. (6) The office of Ombudsman is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office. (7) The Ombudsman is entitled to be paid— (a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and (b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the Ombudsman. (8) The Ombudsman has and may exercise the functions conferred or imposed on the Ombudsman by or under this or any other Act. (9) Despite subsection (4) (b), the Ombudsman does not vacate the office of Ombudsman if the Ombudsman engages in paid employment outside the duties of the office with the approval of the Minister. 6A Veto of proposed appointment of Ombudsman (1) A person is not to be appointed as Ombudsman until— (a) a proposal that the person be appointed has been referred to the Joint Committee under section 31BA, and (b) either the period that the Joint Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment. (2) A person may be proposed for appointment on more than one occasion. (3) In this section and section 31BA, appointment includes re-appointment. 7 Acting Ombudsman (1) The Governor may, on the recommendation of the Minister, appoint an acting Ombudsman during the absence of the Ombudsman or during a vacancy in the office of Ombudsman. (1A) The Ombudsman may— (a) from time to time, appoint a Deputy Ombudsman or an Assistant Ombudsman to be an acting Ombudsman during an absence of the Ombudsman for a period of no more than 30 days, and (b) revoke the appointment. (1B) An appointment of an acting Ombudsman by the Ombudsman is revoked on the appointment of an acting Ombudsman by the Governor. (2) An acting Ombudsman is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the Ombudsman. (3) No person shall be concerned to inquire whether or not any occasion has arisen requiring or authorising an acting Ombudsman to act as Ombudsman. (4) An acting Ombudsman when acting as Ombudsman is taken to be the Ombudsman. 8 Deputy Ombudsman and Assistant Ombudsman (1) The Ombudsman may appoint one or more Deputy Ombudsman and Assistant Ombudsman. (1A) The Ombudsman must appoint a Deputy Ombudsman as the Community Services Commissioner for the purposes of the Community Services (Complaints, Reviews and Monitoring) Act 1993. (1B) The Ombudsman is to appoint a Deputy Ombudsman for the purpose of enabling the Ombudsman to monitor and assess Aboriginal programs under Part 3B. (2) The provisions of section 6 (3) (b), (4) (b) and (c) and (5) apply to and in respect of a Deputy Ombudsman and an Assistant Ombudsman in the same way that they apply to and in respect of the Ombudsman. (3) The offices of Deputy Ombudsman and Assistant Ombudsman are statutory offices and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to those offices (except as provided by subsection (4B)). (4) A Deputy Ombudsman and an Assistant Ombudsman hold office for such term, not exceeding 5 years, as may be specified in the instrument of appointment, but are eligible (if otherwise qualified) for re-appointment. (4A) The employment of a Deputy Ombudsman and an Assistant Ombudsman is (subject to this section) to be governed by a contract of employment between the Deputy Ombudsman or Assistant Ombudsman and the Ombudsman. (4B) The following provisions of or made under the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to a Deputy Ombudsman and an Assistant Ombudsman (but in the application of those provisions a reference to the employer of any such executive is to be read as a reference to the Ombudsman)— (a) provisions relating to the band in which an executive is to be employed, (b) provisions relating to the contract of employment of an executive, (c) provisions relating to the remuneration, employment benefits and allowances of an executive, (d) provisions relating to the termination of employment of an executive. (4C) The office of a Deputy Ombudsman or an Assistant Ombudsman becomes vacant if the holder— (a) dies, or (b) completes a term of office and is not re-appointed, or (c) resigns the office by instrument in writing addressed to the Ombudsman, or (d) 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, or (e) becomes a mentally incapacitated person, or (f) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (g) is removed from office under subsection (4B). (5) If a Deputy Ombudsman or an Assistant Ombudsman is appointed as acting Ombudsman, he or she does not, on that account, cease to be Deputy Ombudsman or an Assistant Ombudsman. (6) Despite subsection (2), section 6 (4) (b) does not apply to or in respect of a Deputy Ombudsman or an Assistant Ombudsman if the Deputy Ombudsman or Assistant Ombudsman engages in paid employment outside the duties of the office of Deputy Ombudsman or Assistant Ombudsman with the approval of the Ombudsman. 8A Deputy Ombudsman—functions (1) A Deputy Ombudsman may, to the extent to which he or she is directed by the Ombudsman to do so, exercise any function of the Ombudsman other than the following functions— (a) a function conferred or imposed by section 10, 10A, 21C or 30, (b) the power to accept or to refuse to accept a delegation to which section 10B applies, (c) the power to exercise or to refuse to exercise a function conferred on the Ombudsman as referred to in section 10B. (2) (Repealed) 8B Acting Deputy Ombudsman and Assistant Ombudsman (1) The Ombudsman may, from time to time, appoint a person to be an acting Deputy Ombudsman or Assistant Ombudsman, and the Ombudsman may revoke any such appointment. (2) In the absence of a Deputy Ombudsman or an Assistant Ombudsman, a person so appointed is to act in the place of the Deputy Ombudsman or Assistant Ombudsman. (3) While acting in the place of a Deputy Ombudsman or an Assistant Ombudsman, a person has all the functions of the Deputy Ombudsman or Assistant Ombudsman and is taken to be a Deputy Ombudsman or an Assistant Ombudsman. 9 (Repealed) 10 Delegation (1) Subject to subsection (2), the Ombudsman may delegate to an Assistant Ombudsman or an officer of the Ombudsman the exercise of any functions of the Ombudsman, including any function which the Ombudsman may exercise pursuant to section 10B. (2) The Ombudsman may not delegate the exercise of— (a) any function to make any report under this Act, except in accordance with subsection (2A), (b) any function conferred by section 10A or 21C, or the power to accept or to refuse to accept a delegation to which section 10B applies or the power to exercise or to refuse to exercise a function conferred on the Ombudsman as referred to in that section, (b1) any function conferred by section 19 (2), other than to an Assistant Ombudsman, or (c) the function conferred by subsection (1). (d), (e) (Repealed) (2A) The Ombudsman may delegate the exercise of the function to make a report— (a) under section 26, 28 or 29, to an Assistant Ombudsman, and (b) under section 28 or 29 (1) (a) or (2) (a), to an officer of the Ombudsman. (3) A delegation under this section may be made subject to conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstances. (4) A delegation under this section must be made by instrument in writing. (5) An instrument of delegation must specify— (a) the functions the exercise of which is delegated, and (b) any conditions or limitations on the delegation. (6) The Ombudsman may revoke a delegation under this section at any time, whether made by the Ombudsman or not. (7) A delegation under this section is not revoked by the happening of a vacancy in the office of Ombudsman or by an absence or disability of the Ombudsman, except to the extent that the instrument of delegation so provides. (8) During a vacancy in the office of Ombudsman, if there is no acting Ombudsman, the Minister may revoke a delegation under this section. (9) Notwithstanding any delegation made under this section, the Ombudsman may continue to exercise all or any of the functions delegated. 10A Delegation to other Ombudsman (1) The Ombudsman may delegate the exercise of any functions of the Ombudsman under sections 13A, 18, 19 (1), 20 and 23 to a person who is empowered to exercise under a law of another State, the Commonwealth or a Territory of the Commonwealth functions similar to the functions exercised by the Ombudsman under this Act, where— (a) the Ombudsman is of the opinion that an investigation authorised to be carried out by the Ombudsman under this Act may more effectively or more appropriately be carried out by the person to whom it is proposed the delegation be made, and (b) the delegation is for the purpose of enabling that person to carry out that investigation. (2) A delegation under this section may be made subject to conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstances. (3) A delegation under this section must be made by instrument in writing. (4) An instrument of delegation must specify— (a) the functions the exercise of which is delegated, and (b) any conditions or limitations on the delegation. (5) The Ombudsman may revoke a delegation under this section at any time, whether made by that Ombudsman or not. (6) A delegation under this section is not revoked by the happening of a vacancy in the office of Ombudsman or by an absence or disability of the Ombudsman, except to the extent that the instrument of delegation so provides. (7) During a vacancy in the office of Ombudsman, if there is no acting Ombudsman, the Minister may revoke a delegation under this section. (8) Notwithstanding any delegation made under this section, the Ombudsman may continue to exercise all or any of the functions delegated. (9) Where the exercise of a function is delegated under this section, then, for the purpose of enabling a person to carry out an investigation, as referred to in subsection (1) (b), that investigation shall, for the purposes of— (a) the provisions of this Act which confer or impose the delegated function, and (b) the provisions of sections 21 and 24, be an investigation under this Act, and references in those provisions to the Ombudsman shall be construed as including references to the delegate. (10) Where the exercise of a function is delegated under this section, the provisions of sections 34, 35 and 35A apply to and in respect of the delegate and officers of the delegate in the same way as those provisions apply to and in respect of the Ombudsman and officers of the Ombudsman. 10B Delegation from other jurisdictions (1) Where by or under the law of another State, the Commonwealth or a Territory of the Commonwealth any function is conferred on or delegated to the Ombudsman, the Ombudsman may— (a) exercise the function so conferred or may refuse to exercise the function, or (b) accept the delegation and exercise the function so delegated or may refuse to accept the delegation. (2) Except where otherwise expressly provided, a function exercised by the Ombudsman in pursuance of subsection (1) shall, for the purposes of this Act, be deemed to be exercised in the course of the Ombudsman's office or in the execution of this Act, as the case may require. 11 Effect of certain acts etc Any act or thing done, suffered or omitted— (a) pursuant to this or any other Act by an acting Ombudsman or a Deputy Ombudsman, or (b) pursuant to a delegation under section 10 or 10A, has the same force and effect as if done, suffered or omitted by the Ombudsman. Part 3 Investigations and conciliations 11A Application of Part This Part applies to a person who was a public authority in relation to conduct occurring while the person was a public authority in the same way as it applies to a public authority. 12 Right to complain (1) Any person, including a public authority, may complain to the Ombudsman about the conduct of a public authority unless the conduct is of a class described in Schedule 1. Note 1— Protections may be available under the following provisions to persons who make a complaint under this section— (a) the Public Interest Disclosures Act 2022, Part 3—if the complaint is a public interest disclosure, (b) Part 4B—if the making of the complaint is protected action within the meaning of the Part. Note 2— The Public Interest Disclosures Act 2022, section 58 confers additional investigative powers on the Ombudsman in relation to certain public interest disclosures. (2) Where a person wishes to make a complaint under subsection (1), the complaint may, with the consent of that person, be made on his or her behalf by a member of Parliament. (3) If a person detained by, or in the custody of, a public authority (a detained person) requests to make a complaint to the Ombudsman, the public authority or other person superintending the detained person must— (a) take all steps necessary to facilitate the making of the complaint by the detained person, and (b) if the complaint is made orally—make reasonable arrangements for the detained person to make the complaint in a way that is not recorded or monitored, and (c) if the complaint is made in writing—send to the Ombudsman, as soon as practicable, the written matter addressed to the Ombudsman, unopened. (4) A complaint under subsection (1), and a consent for the purposes of subsection (2), must be in writing. (4A) However, the Ombudsman— (a) may accept a complaint that is not in writing if the Ombudsman considers it appropriate to do so, and (b) in that event, must reduce the complaint to writing as soon as practicable. (5) Where a member of Parliament acts for a person under subsection (2) the member does not, except for the purposes of sections 15, 16, 26 (4) and 29, thereby become the complainant. (6) Where a member of Parliament publishes to a person for whom the member acts under subsection (2) any matter, or a copy of any matter, published to the member by the Ombudsman, the publication has, for all purposes, the same effect as if it had been published to that person by the Ombudsman. 12A Referral of complaints about public authorities for investigation (1) The Ombudsman may, if the Ombudsman considers it appropriate, refer a complaint about the conduct of a public authority to the public authority for investigation. (2) The public authority must report to the Ombudsman on the outcome of the referral. (3) The Ombudsman may, when referring the complaint to the public authority, make recommendations on whether, and in what way, the public authority may investigate or otherwise deal with the complaint. (4) The Ombudsman may monitor the progress of the public authority's investigation of the complaint. (5) The public authority must, on the request of the Ombudsman, provide documents and other information relating to the complaint. (6) The Ombudsman may, if the Ombudsman considers it appropriate, also continue to deal with the complaint. (7) In this section— complaint includes part of a complaint. 13 Decision for investigation (1) Where it appears to the Ombudsman that any conduct of a public authority about which a complaint may be made under section 12 may be conduct referred to in section 26, the Ombudsman may, whether or not any person has complained to the Ombudsman about the conduct, make the conduct the subject of an investigation under this Act. (2) Subsection (1) has effect notwithstanding anything in any Act passed before the passing of this Act. (3) The Ombudsman may discontinue an investigation under this Act. (4) Where any person has complained to the Ombudsman under section 12 about the conduct of a public authority, the Ombudsman, in deciding whether to make that conduct the subject of an investigation under this Act or whether to discontinue an investigation commenced by him or her under this Act— (a) may have regard to such matters as he or she thinks fit, and (b) without limiting paragraph (a), may have regard to whether, in his or her opinion— (i) the complaint is frivolous, vexatious or not in good faith, (ii) the subject-matter of the complaint is trivial, (iii) the subject-matter of the complaint relates to the discharge by a public authority of a function which is substantially a trading or commercial function, (iv) the conduct complained of occurred at too remote a time to justify investigation, (v) in relation to the conduct complained of there is or was available to the complainant an alternative and satisfactory means of redress, or (vi) the complainant has no interest or an insufficient interest in the conduct complained of. (4A) (Repealed) (5) Notwithstanding any other provision of this section, the Ombudsman shall not investigate the conduct of a public authority, being a local government authority, if that conduct is subject to a right of appeal or review conferred by or under an Act unless the Ombudsman is of the opinion that special circumstances make it unreasonable to expect that right to be or to have been exercised. (6) To avoid doubt, the Ombudsman may investigate or continue to investigate conduct even if the conduct is or is likely to become the subject of court or other proceedings, unless the Ombudsman considers the investigation is likely to adversely affect the proceedings or potential proceedings. 13AA Preliminary inquiries (1) The Ombudsman may make preliminary inquiries for any of the following purposes— (a) deciding whether the Ombudsman has jurisdiction over particular conduct, (b) deciding whether to make particular conduct of a public authority the subject of an investigation under this Act, (c) another function of the Ombudsman under this Act or another Act. (2) The inquiries may be made whether or not any person has complained to the Ombudsman about the conduct under section 12. (3) If a complaint has been made under section 12 (whether in writing or otherwise), the Ombudsman may, by way of a preliminary inquiry with respect to the complaint, require the complainant to provide further written particulars of the complaint within the time specified by the Ombudsman. (4) A public authority that discloses information to the Ombudsman in response to an inquiry under this section is not required to comply with section 16, 17, 18 or 19 (1) of the Privacy and Personal Information Protection Act 1998. (5) Despite the Health Records and Information Privacy Act 2002— (a) a public authority or other person or body may disclose health information (within the meaning of that Act) to the Ombudsman in response to an inquiry under this section, and (b) the Ombudsman may use any such information for the purposes of this section. (6) For a provision in another Act providing an exception to confidentiality or non-disclosure, information provided in response to an inquiry made under this section is taken to be information provided in response to a requirement under this Act. 13A Dealing with complaint by conciliation (1) The Ombudsman may, at any time, decide to attempt to deal with a complaint by conciliation under this section. (2) The conciliator in any conciliation under this section is to be the Ombudsman or an officer of the Ombudsman. However, the conciliator may, with the agreement of the complainant, arrange for a mediator to assist in the conciliation. (3) Participation in the conciliation by the parties to a complaint is voluntary, and either party may withdraw at any time. The conciliator may also terminate the attempt at conciliation at any time. (4) Evidence of anything said or admitted during the conciliation (or attempted conciliation) and any document prepared for the purposes of any such conciliation are not admissible— (a) in any subsequent investigation, under this Part, of the complaint concerned (unless the person who said or admitted the thing, or to whom the document relates, consents to its admission), or (b) in any proceedings in a court or before a person or body authorised to hear and receive evidence. (5) If an attempt to deal with a complaint by conciliation under this section is unsuccessful, the complaint is to be treated under this Part as if the attempted conciliation had not taken place. However, the conciliator is excluded from participating as an investigating officer in any investigation of the complaint. (6) Nothing in this section prevents a complaint from being dealt with otherwise than in accordance with this section. (7) The Ombudsman may charge the public authority reasonable fees for the following— (a) a conciliation provided under this section, (b) the engagement of a mediator to assist in the conciliation. 14 Amendment of Schedule (1) The Governor may, by proclamation published on the NSW legislation website, amend Schedule 1 so as to add to it, or to omit from it, any class of conduct of a public authority. (2) Where Schedule 1 is amended by adding to it any class of conduct of a public authority, and conduct the subject of an investigation or conciliation by the Ombudsman is or includes conduct of the added class, the Ombudsman shall discontinue the investigation or conciliation in so far as it relates to conduct of the added class and shall not make any report concerning conduct of the added class. (3) A proclamation under subsection (1)— (a) takes effect from the date of the publication of the proclamation or a later date specified in the proclamation, and (b) shall be laid before each House of Parliament within fourteen sitting days of that House after the date of proclamation. (4) If either House of Parliament passes a resolution, of which notice has been given within fifteen sitting days of that House after a proclamation has been laid before it, disallowing the proclamation or any part thereof, the amendment of Schedule 1 made by the proclamation or part thereupon ceases to have effect. (5) For the purposes of subsections (3) and (4) sitting days shall be counted, whether or not they occur during the same session. (6) Where, by the operation of subsection (4), an amendment of Schedule 1 ceases to have effect, the Ombudsman may— (a) resume any investigation or conciliation that he or she discontinued under subsection (2) by reason of the amendment, and (b) make a report concerning the conduct to which the resumed investigation relates. 15 Reasons for refusal to conciliate, investigate or continue to investigate (1) Where— (a) a complaint has been made to the Ombudsman under section 12 about the conduct of a public authority, and (b) the Ombudsman— (i) refuses to investigate the conduct complained of or to deal with the complaint by conciliation, or (ii) discontinues an investigation of that conduct, the Ombudsman shall inform the complainant in writing of his or her decision and the reasons for the decision. (2) However, if the complaint was made orally, the Ombudsman may inform the complainant orally of the Ombudsman's decision and the reasons for the decision unless the complainant asks to be informed of the Ombudsman's reason in writing. (2A) Subsection (2) does not prevent the Ombudsman from informing the complainant in writing of the Ombudsman's decision and the reasons for the decision in relation to a complaint made orally if the Ombudsman is satisfied that it is appropriate to do so in the circumstances. (3) Where the Ombudsman— (a) refuses to carry out any other investigation, or (b) refuses to deal with any other complaint, disclosure or allegation by conciliation, or (c) discontinues any other investigation, the Ombudsman must inform the complainant, or the person who made the disclosure or allegation, in writing of the decision and the reasons for the decision. 16 Notice of investigation (1) Upon the Ombudsman deciding to make the conduct of a public authority the subject of an investigation under this Act, the Ombudsman shall give notice of the decision— (a) where there is a complainant, to the complainant, (b) to the head of the public authority and, if practicable, to the public authority, and (c) as prescribed. (2) A notice under this section must be in writing, must describe the conduct the subject of the investigation and must, so far as practicable, identify the public authority. 17 Privacy An investigation under this Act shall be made in the absence of the public. 18 Ombudsman may require information, document or other thing (1) For an investigation under this Act, the Ombudsman may, by written notice, require a public authority to do the following— (a) give the Ombudsman a written or oral statement of information specified or described in the notice, (b) produce, in accordance with directions in the notice, a document or other thing, or a copy of a document, specified or described in the notice. (2) The notice may— (a) require a person to attend at a specified time and place to give an oral statement of information, and (b) specify the time within which the information must be provided. 19 Inquiries (1) In an investigation under this Act, the Ombudsman may make or hold inquiries. (2) For the purposes of any inquiry under this section, the Ombudsman has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before the Ombudsman in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act shall have effect subject to section 21 of this Act. (3) A witness appearing before the Ombudsman is to be paid such amount as the Ombudsman determines, but not exceeding the amount that would be payable to such a witness if he or she were a Crown witness subpoenaed by the Crown to give evidence. (4) The Ombudsman may appoint an Australian legal practitioner to assist the Ombudsman for the purposes of an inquiry held by the Ombudsman and the Australian legal practitioner may appear before the inquiry. 19A Restriction on publication of evidence (1) Direction regarding publication The Ombudsman may direct that— (a) any evidence given before an inquiry held by the Ombudsman, or (b) the contents of any document, or a description of any thing, produced to the Ombudsman, or (c) any information that might enable a person who has given or may be about to give evidence before an inquiry to be identified or located, or (d) the fact that any person has given or may be about to give evidence before an inquiry, must not be published, or must not be published except in such manner, and to such persons, as the Ombudsman specifies. (2) Public interest The Ombudsman is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest. (3) Offence A person must not make a publication in contravention of a direction given under this section. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (3A) It is not a contravention of a direction given under this section to provide information or evidence— (a) to a medical practitioner or psychologist for the purposes of providing medical or psychiatric care, treatment or counselling, including psychological counselling, to a person who has given or may give evidence before an inquiry, or (b) to an Australian legal practitioner to obtain legal advice or representation in relation to an inquiry or an investigation relating to an inquiry. (4) Definition In this section and sections 19B and 19C, inquiry means an inquiry held under section 19. 19B Publication of evidence given at inquiry (1) A person who was present at an inquiry must not publish, or permit to be published, any evidence given before the inquiry or any of the contents of a document produced at the inquiry, except to the Ombudsman, an officer of the Ombudsman or an Australian legal practitioner appointed under section 19 (4) or as permitted by the Ombudsman or the regulations. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (2) Nothing in this section affects section 19A, but a person cannot be punished under both sections for the same publication. (3) This section does not apply to an officer of the Ombudsman or an Australian legal practitioner appointed under section 19 (4). (4) It is not a contravention of this section to provide information or evidence to— (a) a medical practitioner or psychologist for the purposes of providing medical or psychiatric care, treatment or counselling, including psychological counselling, to a person who has given or may give evidence before an inquiry, or (b) an Australian legal practitioner to obtain legal advice or representation in relation to an inquiry or an investigation relating to an inquiry. 19C Disclosures prejudicing investigations (1) A person who is— (a) required under section 18 to produce a statement of information or to attend and produce a document or other thing, or (b) by a summons under section 19 required to give evidence or to produce a document or other thing, must not disclose any information about the requirement or summons that is likely to prejudice the investigation to which it relates. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (2) Subsection (1) does not apply to a requirement or summons unless it specifies that information about the requirement or summons must not be disclosed. (3) A person does not contravene this section if— (a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the requirement or summons and the employee, agent or other person is directed not to inform the person to whom the information relates about the matter, or (b) the disclosure is made to obtain legal advice or representation in relation to the requirement or summons, or (c) the disclosure is made for the purposes of, or in the course of, legal proceedings, or (c1) the disclosure is made to a medical practitioner or psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person required to give evidence by a summons under section 19, or (d) the disclosure is made in accordance with guidelines issued by the Ombudsman or in accordance with the regulations. (4) A reference in this section to the disclosure of any information about a requirement or summons includes a reference to— (a) a disclosure about the existence or nature of the requirement or summons or of the investigation to which it relates, and (b) a disclosure of any information to a person from which the person could reasonably be expected to infer the existence or nature of the requirement or summons or of the investigation to which it relates. 20 Entry on premises etc (1) In an investigation under this Act, the Ombudsman may, at any time— (a) enter and inspect any premises occupied or used by a public authority as a public authority, and (b) inspect and copy any document or thing in or on the premises. (2) A public authority that occupies or uses premises entered by the Ombudsman under this section must give the Ombudsman the reasonable assistance and access to facilities necessary to enable the Ombudsman to exercise powers under this section. 21 Limits on secrecy and privilege (1) This section applies if, in an investigation under this Act or an inquiry under section 19, the Ombudsman requires any person— (a) to give any statement of information, or (b) to produce any document or other thing, or (c) to give a copy of any document, or (d) to answer any question. (2) The Ombudsman must set aside the requirement if it appears to the Ombudsman that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the Ombudsman that that person consents to compliance with the requirement. (3) The requirement may however be made despite, and is not required to be set aside because of— (a) any rule of law which, in proceedings in a court of law, might justify an objection to compliance with a like requirement on grounds of public interest, or (b) any privilege of a public authority which the public authority might claim in a court of law, or (c) any duty of secrecy or other restriction on disclosure applying to a public authority or a former public authority. 21A Privilege as regards entry and inspections on public premises (1) The Ombudsman must not exercise powers under section 20 if it appears to the Ombudsman that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist inspection of the premises or document or thing or production of the document or thing and it does not appear to the Ombudsman that that person consents to the inspection or production. (2) The powers may however be exercised despite— (a) any rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or document or thing or to production of the document or thing on grounds of public interest, or (b) any privilege of a public authority which the public authority might claim in a court of law, or (c) any duty of secrecy or other restriction on disclosure applying to a public authority. 21B (Repealed) 21C Injunction (1) The Supreme Court may, on an application made by the Ombudsman, grant an injunction restraining any conduct in which a public authority is engaging or in which a public authority appears likely to engage, where that conduct is the subject of, or affects the subject of, an investigation or proposed investigation by the Ombudsman. (2) The Supreme Court shall not grant an application under subsection (1) unless it is of the opinion that the conduct sought to be restrained is likely to prejudice or negate the effect or implementation of a recommendation which the Ombudsman might make pursuant to section 26 (2) were the Ombudsman to find that the conduct or part of the conduct, the subject of the investigation referred to in subsection (1), was conduct referred to in section 26. (3) The Ombudsman shall not be required, as a condition for the granting of an injunction pursuant to an application referred to in subsection (1), to give any undertaking as to damages. 22 Cabinet information and proceedings (1) This Act does not enable the Ombudsman— (a) to require any person— (i) to give any statement of information, (ii) to produce any document or other thing, (iii) to give a copy of any document, or (iv) to answer any question, which relates to information that is Cabinet information under the Government Information (Public Access) Act 2009 or to confidential proceedings of Cabinet or any committee of Cabinet, or (b) to inspect any document or thing which so relates. (2) For the purposes of this section, a certificate of the Secretary or General Counsel of the Cabinet Office that— (a) information is Cabinet information under the Government Information (Public Access) Act 2009, or (b) any information, document, thing or question relates to confidential proceedings of Cabinet or of a committee of Cabinet, is conclusive of that fact. 23 Expert assistance For the purposes of the exercise of any of the Ombudsman's functions, the Ombudsman may engage the services of any person for the purpose of getting expert assistance. 24 Persons to be heard (1) In an investigation under this Act, the Ombudsman shall give an opportunity to make submissions on the conduct the subject of the investigation— (a) if practicable, to the public authority whose conduct it is, and (b) to any other person given notice under section 16. (2) Where, in an investigation under this Act, the Ombudsman considers that there are grounds for adverse comment in respect of any person, the Ombudsman, before making any such comment in any report, shall, so far as practicable— (a) inform that person of the substance of the grounds of the adverse comment, and (b) give the person an opportunity to make submissions. (3) Subsection (2) does not apply in relation to a report under section 28. 25 Consultation with responsible Minister (1) In an investigation under this Act, the Ombudsman shall, on request by the responsible Minister, consult that Minister on the conduct the subject of the investigation. (2) Before publishing a report under section 26, the Ombudsman— (a) shall inform the responsible Minister that he or she proposes to publish such a report, and (b) shall, on request by that Minister, consult that Minister. 25A Review of complaints handling systems (1) The Ombudsman may review the systems of a public authority for handling complaints. (2) The Ombudsman may, in carrying out the review, require the head of the public authority to provide information about the systems, including the operation of the systems. (3) The Ombudsman may— (a) report on issues relating to the systems, and (b) review the policies and performance of the public authority in relation to handling complaints, and (c) make recommendations the Ombudsman considers appropriate. (4) A copy of a report containing recommendations— (a) must be given to the relevant Minister in relation to the public authority, and (b) may be given to another person or body the Ombudsman considers appropriate. Part 3A 25B–25JA (Repealed) Part 3B Aboriginal programs 25K Definitions In this part— Aboriginal program means the following— (a) the OCHRE program, (b) other Government programs primarily directed to the health, or cultural, economic, educational or other wellbeing, of Aboriginal persons or communities. OCHRE program means the OCHRE (Opportunity, Choice, Healing, Responsibility, Empowerment) program launched by the Government in April 2013. 25L Monitoring and assessment of Aboriginal programs (1) The Ombudsman— (a) is to monitor and assess the OCHRE program, and (b) may monitor and assess other Aboriginal programs. (2) Sections 17–24 and 36 apply to the exercise of the Ombudsman's functions under this Part in the same way as they apply to an investigation of a complaint by the Ombudsman, subject to any necessary modifications and to any modifications prescribed by the regulations. 25M Provision of information (1) It is the duty of the head of a public authority that has functions under an Aboriginal program to provide the Ombudsman with full and unrestricted access to records that are under the person's control (or whose production the person may, in an official capacity, reasonably require), being records to which the Ombudsman reasonably requires access for the purpose of exercising the functions of the Ombudsman under this Part in relation to the program. (2) Access to which the Ombudsman is entitled under this section includes the right to inspect and, on request, to be provided with copies of any such record and to inspect any non-documentary evidence associated with any such record. (3) A provision of any Act or law that restricts or denies access to records (other than a provision applied by section 25L (2)) does not prevent a person to whom this section applies from complying, or affect the person's duty to comply, with this section. (4) The Ombudsman and the Minister responsible for an Aboriginal program may consult each other on the monitoring and assessment of, or other matters relating to, the program. (5) The Ombudsman may, if the Ombudsman thinks it appropriate to do so, provide information obtained by the Ombudsman under this section to a public authority that has functions under an Aboriginal program and that has a relevant interest. (6) The provision of information under this section— (a) does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) does not give rise to any liability for defamation or other civil liability. 25N Reporting on Aboriginal programs (1) The Ombudsman may provide a report on any matter concerning an Aboriginal program (including any recommendations for improvements in the delivery of the program) to the Minister responsible for the program and to any other Minister or public authority affected, in the opinion of the Ombudsman, by the report. (2) The Minister responsible for the program is to furnish a copy of the report to the Presiding Officer of each House of Parliament within 1 month after receiving the report. Section 31AA applies to a copy of a report furnished under this section in the same way as it applies to a report under Part 4. Part 3C 25O–25Z (Repealed) Part 4 Reports 25AA (Repealed) 26 Report of investigation (1) Where, in an investigation under this Act, the Ombudsman finds that the conduct the subject of the investigation, or any part of the conduct, is of any one or more of the following kinds— (a) contrary to law, (b) unreasonable, unjust, oppressive or improperly discriminatory, (c) in accordance with any law or established practice but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory, (d) based wholly or partly on improper motives, irrelevant grounds or irrelevant consideration, (e) based wholly or partly on a mistake of law or fact, (f) conduct for which reasons should be given but are not given, (g) otherwise wrong, the Ombudsman is to make a report accordingly, giving his or her reasons. (2) In a report under this section, the Ombudsman may recommend— (a) that the conduct be considered or reconsidered by the public authority whose conduct it is, or by any person in a position to supervise or direct the public authority in relation to the conduct, or to review, rectify, mitigate or change the conduct or its consequences, (b) that action be taken to rectify, mitigate or change the conduct or its consequences, (c) that reasons be given for the conduct, (d) that any law or practice relating to the conduct be changed, (d1) that compensation be paid to any person, or (e) that any other step be taken. (3) The Ombudsman shall give a report under this section— (a) to the responsible Minister, (b) to the head of the public authority whose conduct is the subject of the report, and (c) where the public authority is a Public Service employee, to the Public Service Commissioner. (4) The Ombudsman may give a copy of a report under this section— (a) where the investigation arises out of a complaint to the Ombudsman, to the complainant, (b) to the public authority to whose conduct the report relates. (5) The person to whom a report is given under subsection (3) (b) may, and on request by the Ombudsman shall, notify the Ombudsman of any action taken or proposed in consequence of a report under this section. 26A Authority to pay compensation (1) If the Ombudsman recommends in a report under section 26 that compensation be paid to a person by a person other than a local government authority, the responsible Minister— (a) at the request of the head of the public authority whose conduct is the subject of the report, and (b) with the concurrence of the Treasurer, may authorise the payment of compensation to the person out of the appropriate fund. (2) If the payment of compensation authorised under this section is to be made by a Public Service agency within the meaning of the Government Sector Employment Act 2013, the Treasurer may authorise payment out of the Consolidated Fund (but not otherwise), which is accordingly appropriated to the necessary extent. (3) If the Ombudsman recommends in such a report that compensation be paid to a person by a local government authority, the local government authority may authorise the payment of compensation to that person out of its funds. (4) The functions that may be delegated under section 377 of the Local Government Act 1993 by a council do not include a function relating to the authorisation of the payment of compensation under this section. (5) Nothing in any other Act prevents the payment of compensation in accordance with an authority given under this section, and the amount of compensation paid may be the same as, or may be more or less than, any amount recommended in the Ombudsman's report. 27 Default in consequent action (1) Where the Ombudsman is not satisfied that sufficient steps have been taken in due time in consequence of a report under section 26, the Ombudsman may make a report to the Presiding Officer of each House of Parliament and must also provide the responsible Minister with a copy of the report. (2) The responsible Minister must make a statement to the House of Parliament in which the Minister sits in response to the report not more than 12 sitting days after the report is made to the Presiding Officer. 28 Serious misconduct Where the Ombudsman is of the opinion that a public authority is or may be guilty of misconduct in the course of his or her functions to such an extent as, in the opinion of the Ombudsman, may warrant dismissal, removal or punishment, the Ombudsman shall report the opinion— (a) to the responsible Minister, (b) to the head of the public authority, and (c) where the public authority is a Public Service employee, to the Public Service Commissioner, giving reasons for the opinion. 29 Report to complainant or the relevant person (1) Where the Ombudsman investigates the conduct of a public authority pursuant to a complaint made under section 12, the Ombudsman— (a) may from time to time report to the complainant on the progress of the investigation, (b) shall report to the complainant on the results of the investigation, and (c) may make such comments to the complainant on the investigation and its consequences as he or she thinks fit. (2) Where the Ombudsman carries out any other kind of investigation, the Ombudsman— (a) may from time to time report to the complainant, or the person who made the disclosure or allegation that led to the investigation, on the progress of the investigation, and (b) may report to the complainant, or the person who made the disclosure or allegation that led to the investigation, on the results of the investigation, and (c) may make any comments to the complainant, or the person who made the disclosure or allegation that led to the investigation, on the investigation and its consequences that the Ombudsman thinks fit. 30 Annual reports (1) The Ombudsman must, as soon as practicable after 30 June in each year, prepare a report of the Ombudsman's work and activities for the preceding 12 months and furnish the report to the Presiding Officer of each House of Parliament. (2) Division 7.3 of the Government Sector Finance Act 2018 is, in its application to the annual reporting information prepared for the Ombudsman's Office, modified as follows— (a) the annual reporting information is to be given to the Presiding Officer of each House of Parliament and not to the responsible Minister for the Ombudsman's Office, (b) provisions of that Act relating to the giving of annual reporting information to the responsible Minister for a GSF agency and to the public availability of annual reporting information do not apply to the Ombudsman or the Ombudsman's Office. (3) Section 31AA applies to the annual reporting information for the Ombudsman's Office as if it were a report made or furnished under this Part. 30A Public availability of annual reports (1) The Ombudsman must, as soon as practicable after an annual report has been tabled in each House of Parliament or made public by a Presiding Officer, make copies of the report available for public sale or distribution. (2) The regulations may make provision for or with respect to the place or places at which the Ombudsman is to make copies of the report available. 31 Special report to Parliament (1) The Ombudsman may, at any time, make a special report to the Presiding Officer of each House of Parliament and must also provide the Minister with a copy of the report on any matter arising in connection with the discharge of the Ombudsman's functions. (2) The Ombudsman may include in a report under subsection (1) or under section 27 a recommendation that the report be made public forthwith. (3) (Repealed) 31AA Provisions relating to reports (1) Tabling A copy of a report made or furnished to the Presiding Officer of a House of Parliament under this Part must be laid before that House on the next sitting day of that House after it is received by the Presiding Officer. (2) Public reports If a report includes a recommendation by the Ombudsman that the report be made public forthwith, the Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House. (3) Privileges and immunities A report that is made public by the Presiding Officer of a House of Parliament before it is laid before that House attracts the same privileges and immunities as it would if it had been laid before that House. (4) Report procedures A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied as regards a report purporting to have been made or furnished in accordance with this Act. 31AB Provision of information to DPP, ICAC and Commissioner of Police (1) The Ombudsman may, at any time, furnish information obtained by the Ombudsman in discharging functions under this or any other Act to the Director of Public Prosecutions, the Independent Commission Against Corruption or the Commissioner of Police. (1A) The Ombudsman must refer evidence of a detrimental action offence to— (a) the Commissioner of Police, and (b) either— (i) the Independent Commission Against Corruption, or (ii) if the evidence relates to a member of the NSW Police Force or the New South Wales Crime Commission—the Law Enforcement Conduct Commission. (2) However, the Ombudsman must not disclose information that could not otherwise be disclosed under this Act or could not— (a) in the case of the Director of Public Prosecutions—be obtained by the Director under the Director of Public Prosecutions Act 1986 or any other Act, or (b) in the case of the Independent Commission Against Corruption—be obtained by the Commission under the Independent Commission Against Corruption Act 1988 or any other Act, or (c) in the case of the Commissioner of Police—be obtained by the Commissioner under the Police Act 1990 or another Act. (3) In this section— detrimental action offence has the same meaning as in Part 4B. 31AC Ombudsman may furnish information to public authority (1) The Ombudsman may, at any time— (a) furnish to a public authority information obtained by the Ombudsman in discharging functions under this Act with respect to a complaint against or relating to the public authority, and (b) make such comments to the authority with respect to the complaint as he or she thinks fit. (2) The Ombudsman may also furnish any or all of the information referred to in subsection (1) to any other public authority, and may make such comments (if any) to that public authority as the Ombudsman considers appropriate, if— (a) the Ombudsman is satisfied that the information concerned is relevant to the functions, policies, procedures or practices of that other public authority, and (b) the information does not disclose any personal information (within the meaning of the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002). Part 4A Parliamentary Joint Committee 31A Constitution of Joint Committee (1) As soon as practicable after