Australian Capital Territory Numbered Ordinances Australian Capital Territory Numbered OrdinancesAUSTRALIAN CAPITAL TERRITORY
Ombudsman Ordinance 1989
No. 45 of 1989
TABLE OF PROVISIONS
Section
AUSTRALIAN CAPITAL TERRITORY
Ombudsman Ordinance 1989
No. 45 of 1989
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Ordinance under the Seat of Government (Administration) Act 1910.
Dated 9 May 1989.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
CLYDE HOLDING
Minister of State for the Arts
and Territories
An Ordinance to provide for the appointment of an Australian Capital Territory Ombudsman and to define the functions and powers of that office
1. This Ordinance may be cited as the Ombudsman Ordinance 19891.
2. This Ordinance commences on the date of commencement of section 22 of the Australian Capital Territory (Self-Government) Act 1988 of the Commonwealth.
3. (1) In this Ordinance, unless the contrary intention appears—
(a) in relation to a Department—
(i) a public servant (including the principal officer of that Department) who is a member of that Department;
(ii) any other person (not being a Minister) authorised to exercise powers or perform functions on behalf of that Department by the principal officer of that Department; and
(b) in relation to a prescribed authority—
(i) the person who constitutes, or is acting as the person who constitutes, the authority;
(ii) a person who is, or is acting as, a member of the authority or is a deputy of such a member;
(iii) a person who is employed in the service of, or is a member of the staff of, the authority, whether or not the person is employed by the authority; or
(iv) a person authorised by the authority to exercise any powers or perform any functions of the authority on behalf of the authority;
(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment, other than—
(i) an incorporated company or association;
(ii) a body that, under subsection (2) or the regulations, is not a prescribed authority for the purposes of this Ordinance; or
(iii) an inquiry under the Enquiry Ordinance 1938;
(b) any other body, whether incorporated or unincorporated, that is declared by the regulations to be a prescribed authority for the purposes of this Ordinance, being—
(i) a body established by the Executive or by a Minister; or
(ii) an incorporated company or association over which the Territory is in a position to exercise control;
(c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment; or
(d) a person holding, or performing the duties of, an office declared by the regulations to be an office the holder of which is a prescribed authority for the purposes of this Ordinance, being an office created by the Executive or by a Minister otherwise than under an enactment;
(a) in relation to a Department—the Head of Administration or, if an Associate Head of Administration has been placed in control of that Department, that Associate Head of Administration or a person acting in such an office; or
(b) in relation to a prescribed authority—
(i) if the regulations declare an office to be the principal office in respect of the authority—the person holding, or performing the duties of, that office; or
(ii) in any other case—the person who constitutes that authority or a person acting in his or her office or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which the person is present or a person acting in his or her office;
(a) subject to paragraphs (b) and (c), the Minister who is responsible for that agency;
(b) in relation to a prescribed authority referred to in paragraph (c) of the definition of “prescribed authority”—the Minister administering the enactment concerned; or
(c) in relation to a prescribed authority referred to in paragraph (b) or (d) of the definition of “prescribed authority”—the Minister declared by the regulations to be the responsible Minister in respect of that authority;
or another Minister acting for and on behalf of that Minister.
(2) An unincorporated body, being a board, council, committee, subcommittee or other body established by or under an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority, but action taken by the body, or by a person on its behalf, shall be taken to have been taken by that prescribed authority.
(3) A person shall not be taken to be a prescribed authority only because the person holds or performs the duties of—
(a) a prescribed office;
(b) an office the duties of which the person performs as duties of his or her employment as an officer of an agency;
(c) an office of member of a body; or
(d) an office established by an enactment for the purposes of a prescribed authority;
but any action taken by or on behalf of a person holding or performing the duties of such an office shall be deemed to have been taken by the agency or body concerned.
(4) Where—
(a) a person who is not an officer of an agency for the purposes of this Ordinance takes action in the exercise of a power or the performance of a function that the person is authorised to exercise or to perform because the person holds an appointment made by, or because of authority given by, the Executive, a Minister, the Head of Administration or an Associate Head of Administration; and
(b) the person does not exercise the power or perform the function because the person holds, or performs the duties of, an office established by or under an enactment or because of being a Judge of a court created by the Commonwealth Parliament or of a court of a State or Territory or a magistrate of the Commonwealth or of a State or Territory;
the action shall be deemed to be taken, for the purposes of this Ordinance, by the Department responsible for dealing with the matter in connection with which the action is taken.
(5) Notwithstanding subsection (4), where a person is authorised to exercise a power or perform a function because the person holds an appointment made by, or because of authority given by, the Executive, a Minister, the Head of Administration or an Associate Head of Administration otherwise than under an enactment, the regulations may provide that action taken by the person in the exercise of that power or the performance of that function shall not be deemed to be taken, for the purposes of this Ordinance, by the Department responsible for dealing with the matter in connection with which the action is taken.
(6) For the purposes of this Ordinance, action that is taken by an officer of a Department shall be deemed to be taken by the Department—
(a) if the officer takes, or purports to take, the action because of being such an officer, whether or not—
(i) the action is taken in connection with, or as incidental to, the performance of the functions of the Department; or
(ii) the taking of the action is within the duties of the officer; or
(b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on the officer by an enactment.
(7) Notwithstanding subsection (6), where the regulations provide that the person holding, or performing the duties of, an office established by an enactment is not a prescribed authority for the purposes of this Ordinance, the regulations may also provide that action taken by an officer of a Department, being action in the furtherance of the duties of that office, shall, for the purposes of this Ordinance, be deemed not to be action taken by that Department.
(8) For the purposes of this Ordinance, action that is taken by an officer of a prescribed authority shall be deemed to be taken by the authority—
(a) if the officer takes, or purports to take, the action because of being an officer of the authority, whether or not—
(i) the action is taken for or in connection with, or as incidental to, the performance of the functions of the prescribed authority; or
(ii) the taking of the action is within the duties of the officer; or
(b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on the officer by an enactment.
(9) In this Ordinance, unless the contrary intention appears, a reference to the taking of action includes a reference to—
(a) the making of a decision or recommendation;
(b) the formulation of a proposal; and
(c) failure or refusal to take action, to make a decision or recommendation or to formulate a proposal.
(10) In this Ordinance, unless the contrary intention appears, a reference to the Ombudsman of a State includes a reference to a person performing, under a law of a State, functions similar to the functions performed by the Ombudsman under Part II.
(11) A reference in this Ordinance to the Ombudsman of a State includes a reference to the Ombudsman of a Territory (other than the Australian Capital Territory).
4. (1) For the purposes of this Ordinance, there shall be an Australian Capital Territory Ombudsman.
(2) The functions of the Ombudsman are to investigate complaints made under this Ordinance and to perform such other functions as are conferred by this Ordinance.
5. (1) Subject to this Ordinance, the Ombudsman—
(a) shall investigate action that relates to a matter of administration, being action—
(i) taken after the commencement of this Ordinance by an agency and in respect of which a complaint has been made to the Ombudsman;
(ii) in respect of which a complaint is transferred to the Ombudsman under section 28 of the A.C.T. Self-Government (Consequential Provisions) Act 1988 of the Commonwealth; or
(iii) taken before the commencement of this Ordinance and in respect of which a complaint is made to the Ombudsman after that commencement in a case where, if that complaint had been made to the Commonwealth Ombudsman before that commencement, that complaint would have been transferred to the Ombudsman under section 28 of the A.C.T. Self-Government (Consequential Provisions) Act 1988 of the Commonwealth; and
(b) may, of his or her own motion, investigate action of that kind.
(2) The Ombudsman is not authorised to investigate—
(a) action taken by a Minister;
(b) action taken by a judge of a court;
(c) action taken by a magistrate or coroner for the Territory;
(d) action taken by any body or person with respect to persons employed in the Public Service or the service of a prescribed authority (including persons who are members of the transitional staff within the meaning of the A.C.T. Self-Government (Consequential Provisions) Act 1988 of the Commonwealth), being action taken in relation to the employment of those persons, including action taken with respect to the promotion, termination of appointment or discipline of, or the payment of remuneration to, those persons; or
(e) action taken by an agency with respect to the appointment of a person to an office established by or under an enactment, not being an office in the Public Service or an office in the service of a prescribed authority.
(3) The reference in paragraph (2) (a) to action taken by a Minister does not include a reference to action taken by a delegate of a Minister.
(4) For the purposes of subsection (3), action shall be deemed to have been taken by a delegate of a Minister notwithstanding that the action is taken under a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister.
(5) For the purposes of the application of this Ordinance in relation to the Ombudsman, action taken by an agency shall not be regarded as having been taken by a Minister only because the action was taken by the agency in relation to action taken or to be taken by a Minister personally.
6. (1) Where a complaint has been made to the Ombudsman with respect to action taken by an agency, the Ombusdman may, in his or her discretion, decide not to investigate the action or, if investigation has commenced, decide not to investigate the action further—
(a) if the Ombudsman is satisfied that the complainant became aware of the action more than 12 months before the complaint was made to the Ombudsman; or
(b) if, in the opinion of the Ombudsman—
(i) the complaint is frivolous or vexatious or was not made in good faith;
(ii) the complainant does not have a sufficient interest in the subject matter of the complaint; or
(iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.
(2) Where a person who makes a complaint to the Ombudsman with respect to action taken by an agency has not complained to the agency with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action until the complainant so complains to the agency.
(3) Where a person who makes a complaint to the Ombudsman with respect to action taken by an agency has complained to the agency with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action unless the complainant informs the Ombudsman that no redress has been granted or that redress has been granted but the redress is not, in the opinion of the complainant, adequate.
(4) Where—
(a) a person who has made a complaint to the Ombudsman with respect to action taken by an agency and who has complained to the agency with respect to that action informs the Ombudsman as provided by subsection (3) that no redress, or no adequate redress, has been granted by the agency; and
(b) the Ombudsman is of the opinion—
(i) if no redress has been granted—that, since the complainant complained to the agency, a reasonable period has elapsed in which redress could have been granted; or
(ii) if redress has been granted—that the redress was not reasonably adequate;
the Ombudsman shall, subject to this section, investigate the action.
(5) Where a complainant has caused or causes action to which his or her complaint relates to be reviewed by a court, or by a tribunal constituted by or under an enactment, the Ombudsman shall not investigate, or continue to investigate, the action unless the Ombudsman is of the opinion that there are special reasons justifying the investigation or the continued investigation.
(6) Where the Ombudsman is of the opinion that a complainant has or had a right to cause the action to which the complaint relates to be reviewed by a court, or by a tribunal constituted by or under an enactment, but has not exercised that right, the Ombudsman may decide not to investigate the action or not to investigate the action further, if he or she is of the opinion that, in all the circumstances, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right.
(7) Where, before the Ombudsman commences, or after the Ombudsman has commenced, to investigate action taken by an agency, being action that is the subject matter of a complaint, the Ombudsman forms the opinion that adequate provision is made under an administrative practice for the review of action of that kind, the Ombudsman may decide not to investigate the action or not to investigate the action further—
(a) if the action has been, is being or is to be reviewed under that practice at the request of the complainant; or
(b) if the Ombudsman is satisfied that the complainant is entitled to cause the action to be reviewed under that practice and it would be reasonable for the complainant to cause it to be so reviewed.
(8) Where a complaint is made to the Ombudsman by a complainant at the request of another person or of a body of persons, this section applies as if references to the complainant were references to the person or the body of persons at whose request the complaint is made.
7. (1) Subject to subsection (2), a complaint under this Ordinance may be made to the Ombudsman orally or in writing.
(2) Where a complaint is made orally to the Ombudsman, the Ombudsman may put the complaint in writing or at any time require the complainant to put the complaint in writing and, where the Ombudsman makes such a requirement of a complainant, the Ombudsman may decline to investigate the complaint, or to investigate the complaint further, until the complainant complies with the requirement.
(3) A person who is detained in custody is entitled—
(a) upon making a request to the person in whose custody he or she is detained or to any other person performing duties in connection with the detention (in this section called the “custodian”)—
(i) to be provided with facilities for preparing a complaint in writing under this Ordinance, for giving in writing to the Ombudsman, after the complaint has been made, any other relevant information and for enclosing the complaint or the other information (if any) in a sealed envelope; and
(ii) to have sent to the Ombudsman, without undue delay, a sealed envelope addressed to the Ombudsman and delivered by the person in custody to the custodian; and
(b) to have delivered to him or her, without undue delay, any sealed envelope addressed to him or her and sent by the Ombudsman, that comes into the possession or under the control of the custodian.
(4) Where—
(a) a sealed envelope addressed to the Ombudsman is delivered by a person detained in custody to the custodian for sending to the Ombudsman; or
(b) a sealed envelope addressed to a person so detained and sent by the Ombudsman comes into the possession or under the control of the custodian;
the custodian is not entitled to open the envelope or to inspect any document enclosed in the envelope.
(5) For the purposes of subsections (3) and (4), the Ombudsman may make arrangements with the appropriate authority of the Commonwealth or of a State or a Territory for the identification and delivery of sealed envelopes sent by the Ombudsman to persons detained in custody.
8. (1) Where a complaint has been made to the Ombudsman with respect to action taken by an agency, or it appears to the Ombudsman that the Ombudsman may under paragraph 5 (1) (b) investigate action so taken, the Ombudsman may, for the purpose of—
(a) determining whether or not the Ombudsman is authorised to investigate the action; or
(b) if the Ombudsman is authorised to investigate the action—determining whether or not the Ombudsman may, in his or her discretion, decide not to investigate the action;
make inquiries of the principal officer of the agency or, if an arrangement with the principal officer of the agency is in force under subsection (2), of such officers as are referred to in the arrangement.
(2) The Ombudsman may from time to time make an arrangement with the principal officer of an agency with respect to the officers of whom all inquiries, or particular inquiries, are to be made by the Ombudsman under subsection (1) with respect to action taken by the agency.
9. (1) The Ombudsman shall, before commencing an investigation under this Ordinance of action taken by an agency, inform the principal officer of the agency that the action is to be investigated.
(2) The Ombudsman may from time to time make an arrangement with the principal officer of an agency with respect to the manner in which, and the period within which, the Ombudsman is to inform the principal officer that he or she proposes to investigate action taken by the agency, being action to which the arrangement relates.
(3) An investigation under this Ordinance shall be conducted in private and, subject to this Ordinance, in such manner as the Ombudsman thinks fit.
(4) Subject to this Ordinance, the Ombudsman may, for the purposes of this Ordinance, obtain information from such persons, and make such inquiries, as he or she thinks fit.
(5) Subject to subsection (6), it is not necessary for the complainant or any other person to be afforded an opportunity to appear before the Ombudsman or any other person in connection with an investigation by the Ombudsman under this Ordinance.
(6) The Ombudsman shall not make a report in respect of an investigation under this Ordinance in which he or she sets out opinions that are, either expressly or impliedly, critical of an agency or person unless, before completing the investigation, the Ombudsman has—
(a) if the opinions relate to an agency—given the principal officer of the agency and the officer principally concerned in the action to which the investigation relates opportunities to appear before the Ombudsman or before an authorised person, and to make such submissions, either orally or in writing, in relation to that action as they think fit; and
(b) if the opinions relate to a person—given that person an opportunity to appear before the Ombudsman or before an authorised person, and to make such submissions, either orally or in writing, in relation to the action to which the investigation relates as the person thinks fit.
(7) Where the Ombudsman gives the principal officer of an agency an opportunity to appear before the Ombudsman or before an authorised person under subsection (6), the principal officer may appear in person or a person authorised by the principal officer may appear on behalf of the principal officer.
(8) Where the Ombudsman gives a person other than the principal officer of an agency an opportunity to appear before the Ombudsman or before an authorised person under subsection (6), the person may, with the approval of the Ombudsman or of the authorised person, as the case may be, be represented by another person.
(9) Where, in relation to an investigation under this Ordinance, the Ombudsman proposes to give a person an opportunity to appear before the Ombudsman or before an authorised person and to make submissions under subsection (6), or proposes to make a requirement of a person under section 11—
(a) if a complaint was made orally with respect to the action and the complaint has not been put in writing—the complaint shall be put in writing; and
(b) the Ombudsman shall, if he or she has not previously informed the responsible Minister that the action is being investigated, inform that Minister accordingly.
(10) The Ombudsman may, either before or after the completion of an investigation under this Ordinance, discuss any matter that is relevant to the investigation with a Minister concerned with the matter.
(11) On the request of the responsible Minister, the Ombudsman shall consult that Minister before forming a final opinion on any of the matters referred to in subsection 18 (1) or (2) that are relevant to the action under investigation.
(12) Where the Ombudsman becomes of the opinion, either before or after completing an investigation under this Ordinance, that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct and that the evidence is, in all the circumstances, of sufficient force to justify doing so, the Ombudsman shall bring the evidence to the notice of—
(a) in the case of a Department—
(i) if the person is the principal officer of the Department and is also the Head of Administration—the responsible Minister of the Department;
(ii) if the person is the principal officer of the Department and is also an Associate Head of Administration—the Head of Administration; or
(iii) if the person is a member of the Department but is not the principal officer of the Department—the principal officer of the Department; or
(b) in the case of a prescribed authority—
(i) if the person is the principal officer of the authority—the responsible Minister of the authority; or
(ii) if the person is not the principal officer of the authority—the principal officer of the authority.
10. (1) The Ombudsman may make an arrangement in writing with the Commonwealth Ombudsman, the Ombudsman of a State, or 2 or more of them, in relation to the investigation by any 1 or more of them of action that relates to a matter of administration referred to in any of the following paragraphs:
(a) action taken by an agency and action taken by a Department of State of the Commonwealth, a Department of a State or an authority of the Commonwealth or of a State;
(b) action taken by an authority or other agency established or administered jointly by the Territory and the Commonwealth, the Territory and 1 or more States or the Territory, the Commonwealth and 1 or more States;
(c) action taken by an authority or other agency referred to in paragraph (b) and action taken by—
(i) an agency; or
(ii) a Department of State of the Commonwealth, a Department of a State or an authority of the Commonwealth or of a State.
(2) A reference in subsection (1) to action taken by an agency or other authority includes a reference to action taken by such an agency or authority on behalf of another body.
(3) The Ombudsman may arrange in writing with another Ombudsman with whom such an arrangement is in force for the variation or revocation of the arrangement.
(4) The regulations may make provision in relation to the participation by the Ombudsman in the carrying out of an investigation under an arrangement under this section.
(5) Nothing in this section affects the powers and duties of the Ombudsman under any other provision of this Ordinance.
(6) Subsection (1) does not empower the Ombudsman—
(a) to exercise any of the powers of the Commonwealth Ombudsman or the Ombudsman of a State except in accordance with subsection 32 (3); or
(b) to make an arrangement for the exercise by the Commonwealth Ombudsman or the Ombudsman of a State of a power of the Ombudsman except in accordance with an instrument of delegation referred to in subsection 32 (1).
11. (1) Where the Ombudsman has reason to believe that a person is capable of providing information or producing documents or other records relevant to an investigation under this Ordinance, the Ombudsman may, by notice in writing served on the person, require the person, at such place, and within such period or on such day and at such time, as are specified in the notice—
(a) to provide to the Ombudsman, by writing signed by that person or, in the case of a body corporate, by an officer of the body corporate, any such information;
(b) to produce to the Ombudsman such documents or other records as are specified in the notice; or
(c) to provide to the Ombudsman any such information and to produce to the Ombudsman such documents or other records as are specified in the notice.
(2) Where the Ombudsman has reason to believe that an officer of an agency is capable of providing information or producing documents or other records relevant to an investigation under this Ordinance or both providing information and producing documents or other records of that kind, but the Ombudsman does not know the identity of the officer, the Ombudsman may, by notice in writing served on the principal officer of the agency, require the principal officer or a person nominated by the principal officer, at such place, and within such period or on such day and at such time, as are specified in the notice—
(a) to attend before a person specified in the notice to answer questions relevant to the investigation;
(b) to produce to a person specified in the notice such documents or other records as are so specified; or
(c) to attend before a person so specified to answer questions of that kind and to produce to a person so specified such documents or other records as are so specified.
(3) Where documents or other records are produced to the Ombudsman in accordance with a requirement under subsection (1) or (2) or an order under subsection 14 (2), the Ombudsman—
(a) may take possession of, and may make copies of, or take extracts from, the documents or other records;
(b) may retain possession of the documents or other records for such period as is necessary for the purposes of the investigation to which the documents or other records relate; and
(c) during that period shall permit a person who would be entitled to inspect any 1 or more of the documents or other records if they were not in the possession of the Ombudsman to inspect at all reasonable times such of the documents or other records as that person would be so entitled to inspect.
(4) Where the Ombudsman has reason to believe that a person is able to give information relevant to an investigation under this Ordinance, the Ombudsman may, by notice in writing served on the person, require the person to attend before a person specified in the notice, on such day and at such time and place as are specified in the notice, to answer questions relevant to the investigation.
(5) Where the Minister certifies in writing that the disclosure to the Ombudsman of information concerning a specified matter (including the providing of information in answer to a question) or the disclosure to the Ombudsman of the contents of any documents or records would be contrary to the public interest—
(a) because it would involve the disclosure of communications between a Minister and a Commonwealth Minister or a Minister of a State or of a Territory, being a disclosure that would prejudice relations between the Territory and the Commonwealth, between the Territory and a State or between the Territory and another Territory, as the case may be; or
(b) because it would involve the disclosure of deliberations or decisions of the Executive or of a Committee of the Executive;
the Ombudsman is not entitled to require a person to provide any information concerning the matter, to answer questions concerning the matter or to produce those documents or records to the Ombudsman.
(6) Where the Commonwealth Attorney-General certifies in writing that the disclosure to the Ombudsman of information concerning a specified matter (including the providing of information in answer to a question) or the disclosure to the Ombudsman of the contents of any documents or records would be contrary to the public interest—
(a) because it would prejudice the security, defence or international relations of the Commonwealth;
(b) because it would involve the disclosure of communications between a Commonwealth Minister and a Minister of a State or of a Territory, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of a State or of a Territory, as the case may be; or
(c) because it would involve the disclosure of deliberations or decisions of the Commonwealth Cabinet or of a Committee of the Cabinet;
the Ombudsman is not entitled to require a person to provide any information concerning the matter, to answer questions concerning the matter or to produce those documents or records to the Ombudsman.
(7) Notwithstanding the provisions of any enactment, a person is not excused from providing any information, producing a document or other record or answering a question when required to do so under this Ordinance on the ground that the providing of the information, the production of the document or record or the answer to the question—
(a) would contravene the provisions of any other enactment, would be contrary to the public interest or might tend to incriminate the person or make the person liable to a penalty; or
(b) would disclose legal advice provided to a Minister or an agency;
but the information, the production of the document or record or the answer to the question is not admissible in evidence against the person in proceedings other than—
(c) an application under subsection 14 (2); or
(d) proceedings for an offence against section 35.
(8) A person is not liable to any penalty under the provisions of any other enactment because of the person having furnished information, produced a document or other record or answered a question when required to do so under this Ordinance.
(9) The reference in subsection (1) to an officer, in relation to a body corporate, being a body corporate that is not a prescribed authority, includes a reference to a director, secretary, executive officer or employee of the body corporate.
12. (1) Where—
(a) under an enactment, a person has a power to do an act or thing in the exercise of a discretion or otherwise;
(b) no enactment prescribes a period within which the person is required to do or refuse to do the act or thing;
(c) under an enactment, an application may be made to a prescribed tribunal for the review of decisions made in the exercise of that power; and
(d) a complaint has been made to the Ombudsman concerning a failure to do the act or thing in the exercise of that power;
the Ombudsman may, after investigating the complaint, if he or she is of the opinion that there has been unreasonable delay in deciding whether to do the act or thing, give to the complainant a certificate certifying that, in the opinion of the Ombudsman, there has been unreasonable delay in deciding whether to do the act or thing.
(2) Where the Ombudsman gives a certificate under subsection (1), the person required or permitted to exercise the power shall, for the purpose of enabling an application to be made under the enactment referred to in paragraph (1) (c) to the prescribed tribunal concerned, be taken to have made, on the day on which the certificate is given, a decision in the exercise of that power not to do the act or thing.
(3) Where—
(a) under an enactment, a person has a power to do an act or thing in the exercise of a discretion or otherwise;
(b) no enactment prescribes a period within which the person is required to do or refuse to do the act or thing;
(c) under an enactment, an application may be made to a person other than a prescribed tribunal for the review of decisions made in the exercise of that power and an enactment also provides that an application may be made to a prescribed tribunal for the review of decisions made by the last-mentioned person upon an application first referred to in this paragraph; and
(d) a complaint has been made to the Ombudsman concerning a failure to do the act or thing in the exercise of that power;
the Ombudsman may, after investigating the complaint, if he or she is of the opinion that there has been unreasonable delay in deciding whether to do the act or thing, give to the complainant a certificate certifying that, in the opinion of the Ombudsman, there has been unreasonable delay in deciding whether to do the act or thing.
(4) Where the Ombudsman gives a certificate under subsection (3), the person required or permitted to exercise the power shall, for the purpose of enabling an application to be made to the person referred to in paragraph (3) (c), be taken to have made, on the day on which the certificate is given, a decision in the exercise of that power not to do the act or thing.
(5) Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, subsections (1), (2), (3) and (4) apply as if the board, committee or other body were a person empowered to make those decisions.
(6) In this section, “prescribed tribunal” means—
(a) the Australian Capital Territory Administrative Appeals Tribunal; or
(b) any other tribunal that is declared by the regulations to be a prescribed tribunal for the purposes of this section.
13. (1) Where the Ombudsman investigates the taking of action under a power conferred by an enactment, the Ombudsman may recommend to the principal officer concerned that a specified question relating to the taking of that action or to the exercise of that power be referred to the Australian Capital Territory Administrative Appeals Tribunal for an advisory opinion.
(2) The Ombudsman may make a recommendation under subsection (1)—
(a) by giving the recommendation to the principal officer concerned at any time before the completion of the investigation by the Ombudsman; or
(b) by including the recommendation in a report made by the Ombudsman to the agency concerned under section 18 after the completion of the investigation.
(3) Where the Ombudsman makes a recommendation to a principal officer under subsection (1), the principal officer shall refer the question specified in the recommendation to the Australian Capital Territory Administrative Appeals Tribunal and that Tribunal may then give an advisory opinion on the question.
14. (1) Where a question with respect to the exercise of a power, or the performance of a function, of the Ombudsman by or under this Ordinance or any other enactment arises between the Ombudsman and the principal officer of any agency that is affected by that exercise or performance, the Ombudsman or the principal officer of the agency may, subject to subsections (3) and (4), make an application to the Supreme Court for a determination of the question.
(2) Where a person fails to comply with a requirement made by the Ombudsman by notice under section 11 to provide information, to produce documents or other records or to attend before the Ombudsman to answer questions, the Ombudsman may make an application to the Supreme Court for an order directing that person to provide the information, to produce the documents or other records, or to attend before the Ombudsman to answer questions, at such place, and within such period or on such day and at such time, as are specified in the order.
(3) The Ombudsman shall not make an application to the Supreme Court under this section unless he or she has informed the responsible Minister of the agency concerned in writing of the reasons for the proposed application.
(4) The principal officer of an agency shall not make an application to the Supreme Court under subsection (1) unless he or she has informed the responsible Minister of the agency in writing of the reasons for the proposed application.
(5) The Supreme Court has jurisdiction with respect to matters arising under this section in respect of which applications are made to the Supreme Court.
15. (1) Where the Ombudsman does not, for any reason, investigate, or continue to investigate, action taken by an agency in respect of which a complaint has been made to him or her, the Ombudsman shall, as soon as practicable and in such manner as the Ombudsman thinks fit, inform—
(a) the complainant; and
(b) except where an arrangement with the agency is in force under subsection (2) relating to actions of that kind, the agency;
of the decision and of the reasons for the decision.
(2) The Ombudsman may from time to time make with an agency an arrangement in relation to actions in respect of which complaints have been or are made to the Ombudsman, being actions taken by the agency that are specified in the arrangement—
(a) providing for the manner in which, and the period within which, the Ombudsman is to inform the agency of a decision not to investigate, or to continue to investigate, such actions and of the reasons for the decision; or
(b) providing that the Ombudsman is not required to inform the agency of a decision not to investigate, or to continue to investigate, such actions and of the reasons for the decision.
(3) Where the Ombudsman completes an investigation of action taken by an agency in respect of which a complaint has been made to him or her, the Ombudsman shall, in such manner and at such times as he or she thinks fit, give to the complainant and to the agency particulars of the investigation.
(4) The Ombudsman may, if he or she thinks fit, provide comments or suggestions with respect to any matter relating to or arising out of an investigation by the Ombudsman to any agency, body or person other than an agency, body or person to which or to whom he or she has given a report under section 18 relating to that matter or to matters that include that matter.
(5) Where the Ombudsman gives a report to an agency under section 18 containing recommendations with respect to action in respect of which a complaint has been made—
(a) the Ombudsman shall, if action that is, in the opinion of the Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the recommendations within a reasonable time after the recommendations are given to the agency—give to the complainant a copy of the recommendations, together with such comments (if any) as the Ombudsman thinks fit; or
(b) in any other case—the Ombudsman may give to the complainant a copy of the recommendations, together with such comments (if any) as he or she thinks fit.
16. The Ombudsman may administer an oath or affirmation to a person required to attend before him or her under section 11 and may examine the person on oath or affirmation.
17. (1) For the purposes of an investigation under this Ordinance, the Ombudsman or an authorised person may, at any reasonable time of the day, enter any place occupied by an agency and may carry on the investigation at the place.
(2) For the purposes of an investigation under this Ordinance, an authorised person is entitled to inspect any documents relevant to the investigation that are kept at premises entered under this section, other than documents to which a certificate under subsection 11 (5) or (6) applies, at a reasonable time of the day arranged with the principal officer of the agency concerned.
(3) Subsection (2) shall not be taken to restrict the operation of section 11.
18. (1) Where, after an investigation under this Ordinance into action taken by an agency has been completed, the Ombudsman is of the opinion—
(a) that the action—
(i) appears to have been contrary to law;
(ii) was unreasonable, unjust, oppressive or improperly discriminatory;
(iii) was in accordance with a rule of law, a provision of an enactment or a practice but the rule, provision or practice is or may be unreasonable, unjust, oppressive or improperly discriminatory;
(iv) was based either wholly or partly on a mistake of law or of fact; or
(v) was otherwise, in all the circumstances, wrong;
(b) that, in the course of the taking of the action, a discretionary power had been exercised for an improper purpose or on irrelevant grounds; or
(c) if the action comprised or included a decision to exercise a discretionary power in a particular manner or to refuse to exercise such a power—
(i) that irrelevant considerations were taken into account, or that there was a failure to take relevant considerations into account, in the course of reaching the decision to exercise the power in that manner or to refuse to exercise the power, as the case may be; or
(ii) that the complainant in respect of the investigation or some other person should have been given, but was not given, particulars of the reasons for deciding to exercise the power in that manner or to refuse to exercise the power, as the case may be;
this section applies to the decision, recommendation, act or omission constituting that action.
(2) Where the Ombudsman is of the opinion—
(a) that a decision, recommendation, act or omission to which this section applies should be referred to the appropriate authority for further consideration;
(b) that some particular action could and should be taken to rectify, mitigate or alter the effects of, a decision, recommendation, act or omission to which this section applies;
(c) that a decision to which this section applies should be cancelled or varied;
(d) that a rule of law, provision of an enactment or practice on which a decision, recommendation, act or omission to which this section applies was based should be altered;
(e) that reasons should have been, but were not, given for a decision to which this section applies; or
(f) that any other thing should be done in relation to a decision, recommendation, act or omission to which this section applies;
the Ombudsman shall report accordingly to the agency concerned.
(3) The Ombudsman—
(a) shall include in a report under subsection (2) the reasons for the opinions specified in the report; and
(b) may also include in such a report any recommendations he or she thinks fit to make.
(4) The Ombudsman may request the agency to which the report is given to give to him or her, within a specified time, particulars of any action that it proposes to take with respect to the matters and recommendations included in the report.
(5) Where the Ombudsman reports under subsection (2) to an agency, the agency may give to the Ombudsman such comments concerning the report as it wishes to make.
(6) The Ombudsman shall give a copy of a report made under subsection (2) to the responsible Minister of the agency concerned.
19. (1) Where action that is, in the opinion of the Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in a report to an agency under section 18 within a reasonable time after the Ombudsman gave the report to the agency, the Ombudsman may inform the Chief Minister accordingly in writing.
(2) Where the Ombudsman informs the Chief Minister under subsection (1) in relation to a report, the Ombudsman shall give to the Chief Minister—
(a) if a copy of the report has not previously been given to the Chief Minister under subsection 18 (6)—a copy of the report; and
(b) if the agency to which the report was made has given comments concerning the report to the Ombudsman—a copy of those comments.
(3) In considering whether to give information in relation to a report to the Chief Minister under subsection (1), the Ombudsman shall have regard to any comments given to him or her by the agency to which the report was made.
20. Where the Ombudsman has, in accordance with subsection 19 (1), given information to the Chief Minister in relation to a report concerning an investigation made by the Ombudsman, the Ombudsman may also give to the Presiding Officer of the Legislative Assembly, for presentation to the Legislative Assembly, copies of a report prepared by the Ombudsman concerning the investigation, being a report that sets out a copy of any comments given to the Ombudsman under subsection 18 (5) by the agency concerned.
21. (1) Subject to subsection (2), the Ombudsman shall, as soon as practicable, and in any event within 6 months, after each 30 June, submit to the Minister, for presentation to the Legislative Assembly, a report of the operations of the Ombudsman during the year that ended on that 30 June.
(2) The first report of the Ombudsman under subsection (1) shall relate to the operations of the Ombudsman during the period commencing at the commencement of this Ordinance and ending on 30 June 1990.
(3) The Ombudsman may, from time to time, submit to the Minister for presentation to the Legislative Assembly—
(a) a report of the operations of the Ombudsman during a part of a year; or
(b) a report in respect of any matter relating to, or arising in connection with, the exercise of the powers, or the performance of the functions, of the Ombudsman under this Ordinance;
but nothing in this section affects the powers and duties of the Ombudsman under sections 18, 19 and 20.
(4) Where the Ombudsman submits a report to the Minister under subsection (1) or (3), the Minister shall cause the report to be laid before the Legislative Assembly within 15 sitting days of the Legislative Assembly after its receipt by the Minister.
22. (1) The Ombudsman shall be appointed by the Executive.
(2) The Ombudsman holds office on such terms and conditions (if any) in respect to matters not provided for in this Ordinance as are prescribed.
23. (1) Subject to this Ordinance, a person appointed under section 22 holds office for such period, not exceeding 7 years, as is specified in the instrument of appointment, but is eligible for reappointment.
(2) A person who has attained the age of 65 years shall not be appointed as Ombudsman, and a person shall not be appointed as Ombudsman for a period that extends beyond the day on which the person will attain the age of 65 years.
24. (1) The Ombudsman shall be paid such remuneration and allowances as are prescribed.
(2) Subsection (1) does not apply to—
(a) remuneration if there is a subsisting determination relating to the remuneration to be paid to the Ombudsman; or
(b) an allowance of a particular kind if there is a subsisting determination relating to an allowance of that kind to be paid to the Ombudsman.
(3) In subsection (2), “determination” means a determination of the Commonwealth Remuneration Tribunal.
(4) This section does not apply to a person holding the office of Ombudsman under—
(a) section 28 of the A.C.T. Self-Government (Consequential Provisions) Act 1988 of the Commonwealth; or
(b) an arrangement between the Territory and the Commonwealth.
25. (1) The Minister may grant leave of absence to the Ombudsman upon such terms and conditions as to remuneration or otherwise as the Minister determines.
(2) Where—
(a) the Commonwealth Ombudsman holds the office of Ombudsman; and
(b) the Commonwealth Ombudsman is granted leave of absence under the Ombudsman Act 1976 of the Commonwealth;
the Ombudsman shall be taken to have been granted leave of absence for the same period under subsection (1).
26. The Ombudsman may resign from office by signed notice given to the Minister.
27. The Executive may, with the consent of the Ombudsman, retire the Ombudsman on the ground of physical or mental incapacity.
28. (1) The Executive may remove the Ombudsman from office on an address praying for his or her removal on the ground of misbehaviour or physical or mental incapacity being presented to the Executive by the Legislative Assembly.
(2) The Executive may suspend the Ombudsman from office on the ground of misbehaviour or physical or mental incapacity.
(3) Where the Executive suspends the Ombudsman from office, the Minister shall cause a statement of the grounds of the suspension to be laid before the Legislative Assembly within 7 sitting days of the Legislative Assembly after the suspension.
(4) Where such a statement has been laid before the Legislative Assembly, the Legislative Assembly may, within 15 sitting days of the Legislative Assembly after the day on which the statement has been laid before it, by resolution, declare that the Ombudsman should be removed from office and, if the Legislative Assembly so passes such a resolution, the Executive shall remove the Ombudsman from office.
(5) If, at the end of 15 sitting days of the Legislative Assembly after the day on which the statement has been laid before it, the Legislative Assembly has not passed such a resolution, the suspension terminates.
(6) If the Ombudsman becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Executive shall remove the Ombudsman from office.
(7) If the Ombudsman is absent from duty, except on leave granted by the Minister, for 14 consecutive days or for 28 days in any 12 months, the Executive may remove the Ombudsman from office.
(8) The Ombudsman shall not be removed or suspended from office except as provided by this section.
(9) The suspension of the Ombudsman from office does not affect any entitlement of the Ombudsman to be paid remuneration and allowances.
(10) This section does not apply if the Commonwealth Ombudsman holds the office of Ombudsman.
29. (1) The Executive may appoint a person to act as Ombudsman—
(a) during a vacancy in the office of Ombudsman, whether or not an appointment has previously been made to that office; or
(b) during any period, or during all periods, when the Ombudsman is or is expected to be absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;
but a person appointed to act during a vacancy shall not continue to act for more than 12 months.
(2) Subsection (1) does not apply if—
(a) the Commonwealth Ombudsman holds the office of Ombudsman; and
(b) a person is appointed under the Ombudsman Act 1976 of the Commonwealth to act in the office of Commonwealth Ombudsman during an absence or unavailability of the Commonwealth Ombudsman;
but a person so appointed may act in the office of Ombudsman under this Ordinance during the absence or unavailability.
(3) Anything done by or in relation to a person purporting to act in the office of Ombudsman is not invalid merely because—
(a) the occasion for the appointment had not arisen;
(b) there was a defect or irregularity in connection with the appointment;
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
30. The staff required for the purposes of this Ordinance shall be—
(a) public servants; or
(b) if the Commonwealth Ombudsman holds the office of Ombudsman—persons referred to in paragraph (a) and persons appointed or employed under the Public Service Act 1922 of the Commonwealth.
31. (1) Subject to section 33, neither the Ombudsman nor a person acting under his or her direction or authority is liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Ordinance.
(2) A reference in subsection (1) to the Ombudsman includes a reference to a delegate of the Ombudsman.
32. (1) The Ombudsman may, by signed instrument, delegate to a person—
(a) all or any of his or her powers under this Ordinance, other than powers under sections 18, 19, 20 and 21; and
(b) any power exercisable by him or her under an instrument of delegation referred to in subsection (3) the sub-delegation of which is permitted by the relevant law of the Commonwealth or the State or by the instrument of delegation.
(2) A delegate shall, upon request by a person affected by the exercise of any powers delegated to him or her, produce the instrument of delegation or a copy of the instrument for inspection by the person.
(3) Where—
(a) in accordance with a law of the Commonwealth or a State, the Commonwealth Ombudsman or the Ombudsman of the State delegates to the Ombudsman, either generally or as otherwise provided by the instrument of delegation, any of his or her powers under such a law; and
(b) the Minister consents in writing to the exercise by the Ombudsman in accordance with the instrument of delegation of a power so delegated;
the Ombudsman is authorised to exercise that power accordingly.
33. (1) In this section, “officer” means—
(a) the Ombudsman;
(b) a person who is a member of the staff referred to in section 30; or
(c) a person, not being a person referred to in paragraph (b), to whom the Ombudsman has delegated any of his or her powers under section 32 or who is an authorised person.
(2) Subject to this section, an officer shall not, either directly or indirectly, and either while the person is, or after ceasing to be, an officer, make a record of, or divulge or communicate to any person, any information acquired because of the person being an officer, being information that was disclosed or obtained under the provisions of this Ordinance, including information provided by the Commonwealth Ombudsman or the Ombudsman of a State or information disclosed to or obtained by the Ombudsman in the exercise of a power of the Commonwealth Ombudsman or of the Ombudsman of a State delegated to the Ombudsman as provided by subsection 32 (3).
Penalty: $500.
(3) Subsection (2) does not prevent an officer—
(a) from making a record of, or divulging or communicating to any person, information acquired in the performance of the officer’s duties as an officer for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman under this Ordinance; or
(b) from divulging or communicating information to a person—
(i) if the information was provided by an officer of an agency in the performance of the person’s duties as such an officer—with the consent of the principal officer of the agency or of the responsible Minister of the agency; or
(ii) if the information was provided by a person otherwise than as set out in subparagraph (i)—with the consent of the person who provided the information.
(4) Subject to subsection (5), subsection (2) does not prevent the Ombudsman from disclosing, in a report made under this Ordinance, such matters as, in his or her opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.
(5) Where the Minister or the Commonwealth Attorney-General gives to the Ombudsman a certificate in writing certifying that—
(a) the disclosure of information or documents concerning a matter; or
(b) the disclosure of a document;
would, for a reason specified in the certificate, being a reason referred to in subsection 11 (5) or (6), as the case may be, be contrary to the public interest, an officer shall not, either directly or indirectly and either while the person is, or after ceasing to be, an officer, except as provided in subsection (6)—
(c) divulge or communicate to any person any information acquired under the provisions of this Ordinance concerning such a matter or such a document;
(d) divulge or communicate any of the contents of such a document to any person; or
(e) give such a document, or a copy of, or an extract from, such a document, to any person.
Penalty: Imprisonment for 2 years.
(6) Subsection (5) does not prevent an officer, in the performance of his or her duties as an officer—
(a) from divulging or communicating information referred to in that subsection to another officer;
(b) from giving any of the contents of, a copy of or an extract from a document referred to in that subsection to another officer; or
(c) from returning such a document that has been produced to the officer to the person lawfully entitled to the custody of the document.
(7) Subject to subsection (8), where the Ombudsman proposes, for purposes connected with the exercise of powers or performance of functions under this Ordinance, to provide information, or to send a document, or a copy of or extract from a document, to the Commonwealth Ombudsman or the Ombudsman of a State, the Ombudsman shall satisfy himself or herself that a law of the Commonwealth or the State makes provision corresponding to the provision made by this section with respect to the confidentiality of information acquired by the Commonwealth Ombudsman or the Ombudsman of the State, as the case may be.
(8) Subsection (7) does not apply in relation to any information or document obtained by the Ombudsman in the exercise of a power of the Commonwealth Ombudsman or the Ombudsman of the State that the Ombudsman was authorised to exercise under subsection 32 (3).
(9) A person who is or has been an officer is not compellable, in any proceedings before a court or before a person authorised by a law, or by consent of parties, to hear, receive and examine evidence, to disclose any information acquired because of the person’s being or having been an officer, being information that was disclosed or obtained under the provisions of this Ordinance.
34. (1) Nothing in this Ordinance precludes the Ombudsman from disclosing information or making a statement to any person or to the public or a section of the public with respect to the performance of the functions of, or an investigation by, the Ombudsman under this Ordinance if, in the opinion of the Ombudsman, it is in the interests of any agency or person, or is otherwise in the public interest, so to disclose that information or to make that statement.
(2) The Ombudsman shall not disclose information or make a statement under subsection (1) with respect to a particular investigation where the disclosure of that information, or the making of that statement, is likely to interfere with the carrying out of that or any other investigation or the making of a report under this Ordinance.
(3) The Ombudsman shall not, in disclosing information or making a statement under subsection (1) with respect to a particular investigation—
(a) set out opinions that are, either expressly or impliedly, critical of an agency or person unless the Ombudsman has complied with subsection 9 (6) in relation to the investigation; or
(b) disclose the name of a complainant or any other matter that would enable a complainant to be identified unless it is fair and reasonable in all the circumstances to do so.
(4) This section has effect notwithstanding subsection 9 (3) and section 33 (other than subsection 33 (5)).
35. (1) A person shall not refuse or fail, without reasonable excuse—
(a) to attend before the Ombudsman;
(b) to be sworn or make an affirmation;
(c) to provide information; or
(d) to answer a question or produce a document or record;
when so required under this Ordinance.
Penalty: $1,000 or imprisonment for 3 months.
(2) A person shall not—
(a) wilfully obstruct, hinder or resist the Ombudsman or any other person in the exercise of functions under this Ordinance without reasonable excuse; or
(b) provide information or make a statement to the Ombudsman or to an authorised person knowing that it is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 3 months.
36. Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith:
(a) the making of a complaint to the Ombudsman under this Ordinance;
(b) the making of a statement to, or the giving of a document or information to, a person who is an officer within the meaning of section 33, for the purposes of this Ordinance, whether or not the statement was made, or the document or information was given, under a requirement under section 11 or an order under section 14.
37. (1) The Minister may, by notice in the Gazette, determine—
(a) the fees and expenses payable to witnesses appearing before the Ombudsman; or
(b) matters connected with those fees and expenses.
(2) The Minister may, by signed instrument, delegate to a person all or any of his or her powers under this section.
38. The Minister may make regulations, not inconsistent with this Ordinance, prescribing—
(a) matters required or permitted by this Ordinance to be prescribed; or
(b) matters necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance.
NOTE
1. Notified in the Commonwealth of Australia Gazette on 10 May 1989.