Ombudsman Act 1978 (Tas)

Ombudsman Act 1978 An Act to make provision for the appointment and functions of an Ombudsman and for the investigation of complaints with respect to administrative action taken by or on behalf of certain government departments and other authorities and for related purposes [Royal Assent 31 January 1979] 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: PART I - Preliminary 1. Short title This Act may be cited as the Ombudsman Act 1978 . 2. Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) Except as provided in subsection (1) , this Act shall commence on a date to be fixed by proclamation. 3. Interpretation (1) In this Act, unless the contrary intention appears – administrative action has the meaning assigned to that expression by section 12 ; aggrieved person, in relation to a complaint, means the person by whom or on whose behalf the complaint is brought and who appears from the complaint to be aggrieved by the action alleged in the complaint; appropriate public authority, in relation to an investigation under this Act, means the public authority by or on behalf of which the action was taken that is the subject of the investigation; Commonwealth jurisdiction means the Commonwealth or a State or a Territory of the Commonwealth; complainant, in relation to a complaint, means the person making the complaint, whether on his own behalf or on behalf of some other person; complaint means a complaint made under section 14 ; conciliator means a person authorised in accordance with section 22A to act as a conciliator; Custodial Inspector means the Custodial Inspector appointed under section 5 of the Custodial Inspector Act 2016 ; Deputy Ombudsman means a person appointed as Deputy Ombudsman under section 8A ; functions includes duties, authorities, and powers; Government Business Enterprise means a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ; government department means any department established under the State Service Act 2000 , or constituted by any other enactment as a department within the meaning of that Act; Head of Agency has the same meaning as in the State Service Act 2000 ; local authority includes – (a) a single authority, controlling authority or joint authority established under Part 3 of the Local Government Act 1993 ; and (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; officer of the Ombudsman means a person who is appointed or employed pursuant to section 9 ; Ombudsman, except in relation to sections 5 , 6 and 7 , includes an officer of the Ombudsman for the time being appointed to act as Ombudsman in accordance with section 8 ; principal officer means – (a) in relation to a government department, the Head of Agency or, if there is no Head of Agency, the principal officer of the department; and (b) in relation to any other public authority, the president, chairman, or other principal or presiding member of the authority or, if the authority comprises a single person, that person; public authority means a public authority referred to in section 4 ; record includes any account, deed, writing, or document and any other record of information however compiled, recorded, or stored, whether in written or printed form or on microfilm or by electronic process or otherwise; responsible Minister, in relation to action taken by any public authority, means the Minister charged with the administration of that authority or the enactment in relation to the functions conferred by or arising under which the action was taken; 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 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; (2) For the purposes of this Act – (a) a reference to a public authority includes a reference to the principal officer and each of the members, officers, and employees of the authority; (b) a reference to an officer of an authority includes a reference to a principal officer and an officer appointed by or to the authority under any Act; (c) a reference to a member of an authority includes a reference to the holder of an office created by any Act who, by virtue of his holding the office, is a member of the authority; and (d) a reference to an employee of an authority includes a reference to a State Service officer or State Service employee. (3) For the purpose of the definition of "State-owned company" in 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. (4) . . . . . . . . 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; (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; (ia) a regulated entity within the meaning of the Water and Sewerage Industry Act 2008 ; (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; (da) the State Litigator; (e) the Auditor-General; (f) the Tasmanian Audit Office; (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) the Associate Judge 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. PART II - The Ombudsman 5. Appointment, &c., of Ombudsman (1) . . . . . . . . (1A) The Governor may appoint a person to be known as the Ombudsman. (2) Subject to this Part, the Ombudsman holds office for such term, not exceeding 5 years, as may be specified in his instrument of appointment and may from time to time be reappointed for a further term, not exceeding 5 years, as may be so specified. (3) . . . . . . . . (4) A person who is a member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a member of any such House of Parliament, is disqualified from holding, or being appointed to, the office of Ombudsman, and a person holding that office vacates that office on becoming so disqualified. (5) For the purpose of subsection (4) , a person becomes a candidate for election as a member of a House of Parliament when he is nominated for that election in accordance with the law regulating the election. (6) The Ombudsman may, by writing under his hand addressed to the Governor, apply to resign his office, and he vacates that office on the acceptance of the application by the Governor. (7) The Ombudsman shall not, except in so far as he is authorized so to do by resolutions of both Houses of Parliament or as expressly authorized by this Act, the Custodial Inspector Act 2016 or the Health Complaints Act 1995 , hold any office of profit (other than his office as Ombudsman) or engage in any occupation for reward outside the duties of his office and, if the Ombudsman contravenes this subsection, he shall be regarded as being guilty of misconduct. (8) The Ombudsman is entitled to such remuneration and expenses as the Governor determines, and holds office subject to such terms and conditions (if any) with respect to matters not provided in this Act as may be prescribed. (9) The Ombudsman is an employee for the purposes of the Public Sector Superannuation Reform Act 2016. (10) . . . . . . . . (10A) . . . . . . . . (11) . . . . . . . . (12) . . . . . . . . (13) . . . . . . . . 6. Removal or suspension of Ombudsman (1) The Ombudsman may, at any time, be removed from his office by the Governor on addresses from both Houses of Parliament. (2) Where the Governor is satisfied that the Ombudsman – (a) is incapable of properly performing the duties of his office; (b) has shown himself incompetent properly to perform, or has neglected, those duties; (c) has become bankrupt, applied to take the benefit of any laws for the relief of bankrupt or insolvent debtors, or made an assignment of any part of his estate for their benefit; (d) has been convicted in this State of a crime or an offence that is punishable by imprisonment for a term of 12 months or more, or has been convicted of a crime or an offence which would, if committed in this State, be a crime or an offence so punishable, or has been convicted, whether in this State or elsewhere, of a crime or offence for which he has been sentenced to imprisonment; or (e) has been guilty of misconduct – he may suspend the Ombudsman from his office. (3) Where the Ombudsman has been suspended from his office under subsection (2) , he shall be restored to office unless – (a) a statement of the grounds of his suspension is laid before each House of Parliament during the first 7 sitting days of that House following the suspension; and (b) each House of Parliament, during the session in which the statement is so laid, and within 30 sitting days of that statement being so laid, passes an address praying for his removal from his office. 7. Supplementary provisions as to Ombudsman (1) . . . . . . . . (2) The Ombudsman is an employee for the purposes of the Long Service Leave (State Employees) Act 1994 . (3) If a State Service officer or State Service employee is appointed to the office of Ombudsman, that officer or employee is entitled to retain all his or her existing and accruing rights as if that officer's or employee's service in that office were a continuation of State Service employment. (4) Where a person ceases to hold the office of Ombudsman and becomes a State Service officer or State Service employee, his or her service in that office is to be regarded as service in the State Service for the purposes of determining his rights as such an officer or employee. 8. Acting appointment (1) The Governor may appoint a person to act in the office of Ombudsman – (a) during a vacancy in that office; or (b) during any period, or during all periods, when the Ombudsman is absent from duty or from Tasmania or is, for any other reason, unable to perform the functions of his office. (2) A person shall not be appointed under subsection (1) for a period exceeding 12 months. (3) An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment. (4) Where a person is acting in the office of Ombudsman in accordance with subsection (1) (b) and the office becomes vacant while that person is so acting, then, subject to subsection (3) , that person may continue to act in the office until the Governor otherwise directs, the vacancy is filled, or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens. (5) The Governor may terminate the appointment of a person under this section at any time. (6) The Governor may determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed under this section. (7) Where a person is acting in the office of Ombudsman in pursuance of an appointment under this section, he has, and may exercise, all the powers, and he may perform all the functions, of the holder of that office under this Act or any other law. (8) All things done or omitted to be done by a person acting in the office of Ombudsman shall be as valid, and have the same consequences, as if they had been done or omitted to be done by the Ombudsman. (9) The validity of anything done by or in relation to a person purporting to act under subsection (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect, or that the occasion for him to act had not arisen or had ceased. (10) A person appointed under subsection (1) may at any time resign his office by writing under his hand delivered to the Governor. 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. 9. Staff of the Ombudsman (1) Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purpose of enabling the functions of the Ombudsman under this or any other Act to be carried out. (2) The Ombudsman may make arrangements with the Secretary of the Department for such State Service officers and State Service employees employed in the Department as may be considered necessary to be made available to enable the Ombudsman to perform the functions of office under this or any other Act and those officers and employees, in conjunction with State Service employment, are to, serve the Ombudsman in any capacity. 10. Delegation of functions of Ombudsman (1) The Ombudsman may, by instrument in writing, delegate to any person who is an officer of the Ombudsman the performance of any of the functions of the Ombudsman under this or any other Act, except the power conferred on him by this subsection and the power under this Act to make any report or recommendation. (2) A delegation under this section may be made to a specified person or to the holder for the time being of a specified office. (3) The Ombudsman may, by instrument in writing, revoke or vary a delegation made under this section. (4) A delegation under this section may be made subject to conditions and restrictions, and may be made generally or in relation to any particular case or class of cases. (5) If the Ombudsman by whom a delegation is made dies, or ceases to hold, or is suspended from, office, that delegation shall be deemed to continue in force according to its tenor until it is revoked or varied under this section. (6) An act done by a person in the performance of the functions delegated to him under this section has the same effect as if it were done by the Ombudsman. (7) A delegation under this section does not prevent the Ombudsman from performing any of his functions. 11. Exercise of Commonwealth jurisdiction The Ombudsman may, with the approval of the Minister, perform any functions conferred on him by or under the law of the Commonwealth. PART III - Jurisdiction and Functions of the Ombudsman Division 1 - Extent of jurisdiction 12. Matters subject to investigation (1) Subject to this Act, the Ombudsman may investigate any administrative action taken by or on behalf of a public authority or any matter that the Ombudsman has power to deal with under this Act that is referred to the Ombudsman by the Integrity Commission. (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. (1B) Subsection (1A) does not apply to administrative action taken under a contract made before the commencement of the Ombudsman Amendment Act 2005 . (2) A reference in this Act to taking action includes a reference to – (a) a failure or refusal to perform, or a delay in performing, an act; (b) the formulation of a proposal or an intention; and (c) the making of a recommendation (including a recommendation to a Minister) – and, in this Act, administrative action means action taken in a matter of administration whether there was legal authority for that action or not. (3) The Ombudsman shall not investigate any action of a kind specified in Schedule 2 . (4) The power of the Ombudsman to investigate an administrative action includes power to investigate all the circumstances surrounding that action. (5) The Ombudsman is not, in the exercise of his powers under this Act, entitled to question the merits of – (a) any decision made by a Minister; (b) any decision made by a court or by a person as a member of a court; or (c) any decision made by an authority where the decision does not involve administrative action of a kind that the Ombudsman is authorized to investigate under this Act. (6) Subsection (5) does not prevent the investigation of action pursuant to, or in consequence of, a decision referred to in that subsection. Division 2 - Initiation of investigations 13. Investigations – how commenced Where the Ombudsman is authorized by this Act to carry out an investigation, the investigation may be carried out on his own motion or on a complaint or reference made in accordance with this Division. 14. Complaints (1) Subject to this section, a complaint may be made in writing or orally to the Ombudsman by an individual or body (whether incorporated or not) aggrieved by an administrative action, but the Ombudsman may require an oral complaint to be confirmed in writing. (2) Where an individual by whom a complaint might have been made has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by some person who, in the opinion of the Ombudsman, is suitable to represent him. (3) Where a person wishes to make a complaint, that complaint may, with his consent, be made by a member of Parliament. (4) Except as provided by this section, a complaint shall not be entertained under this Act unless it is made by the person personally aggrieved. (5) Where a complaint is made to the Ombudsman that does not refer to an administrative action that he is authorized by this Act to investigate, he may nevertheless entertain the complaint if, in his opinion, it is likely that the cause of complaint arose from action of that kind. 15. Investigation on reference by Governor (1) The Governor may refer to the Ombudsman, for investigation and report, any matter within the jurisdiction of the Ombudsman that should, in the opinion of the Governor, be so investigated. (2) As soon as practicable after any matter is referred to the Ombudsman under this section, he shall carry out the investigation and submit to the Governor a report on the matter. (3) As soon as practicable after submitting a report to the Governor in accordance with subsection (2) , the Ombudsman shall lay a copy of the report before each House of Parliament. 16. Investigation on reference by Parliament (1) Either House of Parliament, or any committee of either House, or a joint committee of both Houses of Parliament, may refer to the Ombudsman, for investigation and report, any matter within his jurisdiction that that House or committee considers should be investigated by him. (2) As soon as practicable after any matter is referred to the Ombudsman under this section, he shall carry out the investigation and submit a report – (a) in the case of a matter referred by a joint committee of both Houses of Parliament, to the President of the Legislative Council and the Speaker; (b) in the case of a matter referred by the Legislative Council, or one of its committees, to the President of the Legislative Council; or (c) in the case of a matter referred by the House of Assembly, or one of its committees, to the Speaker. 16A. . . . . . . . . 17. Freedom of disclosure and communication to Ombudsman Where any provision of an Act prohibits or restricts, or authorizes or requires the imposition of a prohibition or restriction on, the disclosure or communication of information, that provision does not apply to or in respect of the disclosure or communication of information in a manner that will prevent or restrict the making of preliminary inquiries under section 20A or the making of a complaint to, or the carrying out of an investigation by, the Ombudsman. 18. Complaints by persons detained in custody Where a person is detained in custody and informs the person in whose custody he is detained, or another person performing duties in connection with his detention, that he wishes to make a complaint to the Ombudsman, it is the duty of the person so informed – (a) to take all steps necessary to facilitate the making of the complaint, including the provision of an unsealed envelope; and (b) without delay, to send to the Ombudsman, unopened, the sealed envelope containing the complaint. 19. Time limit on bringing complaints, &c. (1) Except pursuant to a complaint or reference under this Division, the Ombudsman shall not commence an investigation into any administrative action alleged to have been taken by or on behalf of a public authority where more than 2 years have elapsed since the action was alleged to have been taken. (2) Where, with respect to a complaint, the Ombudsman is satisfied that the action complained of was taken more than 2 years before the public authority in relation to which the complaint is made became subject to this Act, the Ombudsman shall not proceed, or proceed further, with the investigation of thecomplaint unless he is satisfied that there are substantial grounds why in the public interest the investigation should be carried out. (3) Where, with respect to a complaint, the Ombudsman is satisfied that the aggrieved person became aware of the action complained of more than 2 years before the date on which the complaint was made, he shall not proceed, or proceed further, with the investigation of the complaint unless he is satisfied that there was reasonable excuse for the delay in bringing the complaint. (4) Except as provided in this section, the Ombudsman is not precluded from investigating an administrative action by reason of its having been taken before the commencement of this Act. (5) For the purposes of subsections (1) and (2) , the period of 2 years referred to in those subsections does not commence in the case of a continuing administrative action until that action has ceased. 20. Position where alternative remedies are available (1) Where an aggrieved person has exercised, or exercises, a right to cause the action to which a complaint relates to be reviewed by a court or by a tribunal established under an Act, the Ombudsman shall not investigate, or continue to investigate, the action unless he is of the opinion that there are special reasons justifying its investigation or its further investigation. (2) Where the Ombudsman is of the opinion that an aggrieved person has or had a right to have the action to which a complaint relates reviewed by a court or by a tribunal established under an Act, but has not exercised the right, the Ombudsman shall not investigate, or continue to investigate, the action unless he is of the opinion that, in all the circumstances of the case, the failure to exercise the right is not or was not unreasonable. (3) Where, in respect of the action to which a complaint relates, the Ombudsman is of opinion that adequate provision is made under an administrative practice for the review of action of that kind, he may refuse to investigate the action, or investigate it further – (a) if the action has been, is being, or is to be, reviewed in accordance with the practice at the request of the aggrieved person; or (b) if the Ombudsman is satisfied that the aggrieved person is entitled to have the action reviewed in accordance with that practice and it would be reasonable for the aggrieved person to have it so reviewed. 20A. Ombudsman may make preliminary inquiries (1) The Ombudsman may make any preliminary inquiries that he or she considers necessary for the purpose of ascertaining if an investigation should be carried out on the Ombudsman's own motion or 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. 21. Refusal to investigate complaints (1) The Ombudsman may refuse to entertain a complaint, or, having commenced to investigate a matter raised in a complaint, may refuse to continue the investigation, if he is of the opinion – (a) that the matter raised in the complaint is trivial; (b) that the complaint is frivolous or vexatious or is not made in good faith; (c) that the aggrieved person does not have a sufficient interest in the matter raised in the complaint; or (d) that, having regard to all the circumstances of the case, the investigation, or the continuance of the investigation, of the matter raised in the complaint is unnecessary or unjustifiable. (2) . . . . . . . . 22. Notice of refusal to investigate (1) Where the Ombudsman is precluded by this Act from entertaining, or refuses to entertain, a complaint, resolves a complaint under section 20A(3) or refuses to continue an investigation of any matter raised in a complaint, he shall inform the complainant in writing of his decision. (2) Every such decision shall state the reasons on which it is based. 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. (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 as otherwise directed by the Ombudsman. Division 3 - Conduct of investigations 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. 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 co