Part 1Preliminary
1Name of Act
This Act may be cited as the Ombudsman Act
1974.
2Commencement
(1)
This Act, Part 3 excepted, commences on the date
of assent to this Act.
(2)
Part 3 commences on such day as may be appointed
by the Governor in respect thereof and as may be notified by proclamation
published in the Gazette.
3
s 3: Am 1976 No 39,
Sch 1 (1); 1983 No 193, Sch 1 (1). Rep 1999 No 31, Sch 5.79.
4Act binds Crown
This Act binds the Crown not only in right of New
South Wales but also, so far as the legislative power of Parliament permits,
the Crown in all its other capacities.
5Definitions
(1)
In this Act, except in so far as the context or
subject-matter otherwise indicates or requires—
administration includes
administration of an estate or a trust whether involving the exercise of
executive functions of government or the exercise of other
functions.
appointed day means the
day appointed and notified under section 2 (2).
conduct means—
(a)
any action or inaction relating to a matter of
administration, and
(b)
any alleged action or inaction relating to a
matter of administration.
head means—
(a)
in relation to a public authority that is a
Public Service agency or a person employed in a Public Service
agency—the head of the agency, and
(a1)
in relation to a person employed by a political
office holder under Part 2 of the Members of Parliament Staff
Act 2013—the chief of staff of the office of that
office holder, and
(b)
in relation to a public authority that is a local
government authority, or a member or employee of a local government
authority—the mayor (or other presiding officer) of the local government
authority, and
(c)
in relation to a public authority that is a
corporation sole, or who is a person employed by a corporation sole—the
person constituting the corporation, and
(d)
in relation to a public authority that is any
other body, whether incorporated or unincorporated, or who is a person
employed by such a body—the chief executive officer of that body or, if
the affairs of the body are directed by a governing body, the person who
presides at meetings of that governing body, and
(e)
in any other case—the person prescribed by
the regulations, or in the absence of any regulation prescribing a person, the
person who, in the opinion of the Ombudsman, is the chief executive of the
public authority.
Joint Committee means
the joint committee called the Committee on the Ombudsman, the Law Enforcement
Conduct Commission and the Crime Commission, constituted under this
Act.
local government
authority means a council, a county council or a joint
organisation within the meaning of the Local
Government Act 1993.
person includes an
unincorporated body of persons.
public authority
means—
(a)
any person appointed to an office by the
Governor,
(b)
any statutory body representing the
Crown,
(c)
any Public Service agency or any person employed
in a Public Service agency,
(d)
any person in the service of the Crown or of any
statutory body representing the Crown,
(d1)
any person employed by a political office holder
under Part 2 of the Members of Parliament Staff Act
2013,
(e)
an auditable entity within the meaning of the
Government Sector Audit Act
1983,
(f)
any person entitled to be reimbursed his or her
expenses, from a fund of which an account mentioned in paragraph (e) is kept,
of attending meetings or carrying out the business of any body constituted by
an Act,
(f1)
any accreditation authority or registered
certifier within the meaning of the Building and Development
Certifiers Act 2018,
(f2)
any body declared by the regulations to be a
public authority for the purposes of this Act,
(g)
any holder of an office declared by the
regulations to be an office of a public authority for the purposes of this
Act,
(g1)
any local government authority or any member or
employee of a local government authority, and
(h)
any person acting for or on behalf of, or in the
place of, or as deputy or delegate of, any person described in any of the
foregoing paragraphs.
regulations means
regulations made under this Act.
responsible
Minister means—
(a)
in relation to a public authority that is a
Public Service agency or a person employed in a Public Service
agency—the Minister responsible for that agency or, in the case where
more than one Minister is responsible for that agency, the Minister who, in
the opinion of the Ombudsman, is most nearly connected with the conduct of
that agency, and
(b)
in relation to a public authority that is a local
government authority or a member or employee of a local government
authority—the Minister administering the Local
Government Act 1993, and
(c)
in relation to a public authority, not referred
to in paragraph (a) or (b), involved in the administration of an Act or part
of an Act—the Minister administering the Act or the relevant part of the
Act, and
(c1)
in relation to a public authority who is a person
employed by a political office holder under Part 2 of the Members of Parliament Staff Act
2013—the Premier, and
(d)
in relation to any other public
authority—the Minister who, in the opinion of the Ombudsman, is the most
nearly concerned with the conduct of the public
authority.
Supreme Court means the
Supreme Court of New South Wales.
Note—
The Interpretation Act
1987 contains definitions and other provisions that affect
the interpretation and application of this Act.
(1A), (2)
(3)
A reference in this Act, except in section 37 (2)
(e), to an officer of the Ombudsman includes a reference to an acting
Ombudsman, a Deputy Ombudsman and an Assistant
Ombudsman.
(4)
In this Act, a reference to—
(a)
a function includes a reference to a power,
authority and duty, and
(b)
the exercise of a function includes, where the
function is a duty, a reference to the performance of the
duty.
(5)
Notes included in this Act do not form part of
this Act.
s 5: Am 1976 No 39,
Sch 1 (2); 1978 No 81, Sch 1 (1); 1983 No 189, Schs 1 (1), 2 (2); 1983 No 193,
Sch 1 (2); 1986 No 218, Sch 29; 1987 No 136, sec 3; 1989 No 226, Sch 1; 1990
No 79, Sch 1 (1); 1993 No 38, Sch 4; 1994 No 9, Sch 2 (1); 1995 No 11, Sch 1;
1996 No 29, Sch 4 [1]; 1997 No 147, Sch 2.20; 1997 No 152, Sch 4.27; 1998 No
54, Sch 1.13 [1]–[5]; 2005 No 77, Sch 6.12 [1]; 2009 No 96, Sch 15 [1];
2012 No 66, Sch 5.10 [1]; 2013 No 41, Sch 3.4 [1]–[3]; 2014 No 33, Sch
3.21 [1]–[4]; 2016 No 61, Sch 6.35 [1]–[3]; 2017 No 65, Sch 2.20;
2018 No 63, Sch 3.10; 2018 No 70, Sch 4.77[1] [2].
5AReferences to Presiding Officers
(1)
In this Act, a reference to a Presiding Officer
of a House of Parliament is a reference to the President of the Legislative
Council or the Speaker of the Legislative Assembly.
(2)
If there is a vacancy in the office of President,
the reference to the President is taken to be a reference to the Clerk of the
Legislative Council.
(3)
If there is a vacancy in the office of Speaker,
the reference to the Speaker is taken to be a reference to the Clerk of the
Legislative Assembly.
s 5A: Ins 1993 No 37,
Sch 1 (1).
Part 2The Ombudsman
6Office of Ombudsman
(1)
The Governor may, on the recommendation of the
Minister, appoint an Ombudsman on such terms and conditions as are specified
in the instrument of appointment.
(2)
Subject to this Act, the Ombudsman holds office
for such period, not exceeding seven years, as is specified in the instrument
of his or her appointment and is eligible for
re-appointment.
(3)
A person is not eligible for appointment as
Ombudsman if the person—
(a)
is a member of the Legislative Council or the
Legislative Assembly, or
(b)
is a member of a House of Parliament of another
State or of the Commonwealth.
(4)
The Ombudsman vacates the office of
Ombudsman—
(a)
(b)
if he or she engages in any paid employment
outside the duties of the office, or
(c)
if he or she is nominated for election as a
member of the Legislative Council or the Legislative Assembly or as a member
of a House of Parliament of another State or of the Commonwealth,
or
(d)
if he or she resigns the office by instrument in
writing addressed to the Governor and the Governor accepts the
resignation.
(5)
The Ombudsman may, at any time, be removed from
office by the Governor upon the address of both Houses of
Parliament.
(6)
The office of Ombudsman is a statutory office and
the provisions of the Government Sector Employment Act
2013 relating to the employment of Public Service
employees do not apply to that office.
(7)
The Ombudsman is entitled to be
paid—
(a)
remuneration in accordance with the Statutory and Other Offices Remuneration Act
1975, and
(b)
such travelling and subsistence allowances as the
Minister may from time to time determine in respect of the
Ombudsman.
(8)
The Ombudsman has and may exercise the functions
conferred or imposed on the Ombudsman by or under this or any other
Act.
(9)
Despite subsection (4) (b), the Ombudsman does
not vacate the office of Ombudsman if the Ombudsman engages in paid employment
outside the duties of the office with the approval of the
Minister.
s 6: Am 1976 No 4,
Sch 5; 1983 No 189, Sch 2 (3); 1998 No 54, Sch 1.13 [6] [7]; 2002 No 42, Sch 3
[1]; 2014 No 33, Sch 3.21 [5]; 2019 No 14, Sch 1.14[1] [2].
6AVeto of proposed appointment of
Ombudsman
(1)
A person is not to be appointed as Ombudsman
until—
(a)
a proposal that the person be appointed has been
referred to the Joint Committee under section 31BA, and
(b)
either the period that the Joint Committee has
under that section to veto the proposed appointment has ended without the
Committee having vetoed the proposed appointment or the Committee notifies the
Minister that it has decided not to veto the proposed
appointment.
(2)
A person may be proposed for appointment on more
than one occasion.
(3)
In this section and section 31BA, appointment includes
re-appointment.
s 6A: Ins 1992 No 43,
Sch 1.
7Acting Ombudsman
(1)
The Governor may, on the recommendation of the
Minister, appoint an acting Ombudsman during the absence of the Ombudsman or
during a vacancy in the office of Ombudsman.
(2)
An acting Ombudsman is entitled to be paid such
remuneration (including travelling and subsistence allowances) as the Minister
may from time to time determine in respect of the
Ombudsman.
(3)
No person shall be concerned to inquire whether
or not any occasion has arisen requiring or authorising an acting Ombudsman to
act as Ombudsman.
(4)
An acting Ombudsman when acting as Ombudsman is
taken to be the Ombudsman.
s 7: Am 1976 No 4,
Sch 5; 1993 No 38, Sch 4.
8Deputy Ombudsman and Assistant
Ombudsman
(1)
The Ombudsman may appoint one or more Deputy
Ombudsman and Assistant Ombudsman.
(1A)
The Ombudsman must appoint a Deputy Ombudsman as
the Community and Disability Services Commissioner for the purposes of the
Community Services (Complaints, Reviews and Monitoring) Act
1993.
(1B)
The Ombudsman is to appoint a Deputy Ombudsman
for the purpose of enabling the Ombudsman to monitor and assess Aboriginal
programs under Part 3B.
(2)
The provisions of section 6 (3) (b), (4) (b) and
(c) and (5) apply to and in respect of a Deputy Ombudsman and an Assistant
Ombudsman in the same way that they apply to and in respect of the
Ombudsman.
(3)
The offices of Deputy Ombudsman and Assistant
Ombudsman are statutory offices and the provisions of the Government Sector Employment Act 2013
relating to the employment of Public Service employees do not apply to those
offices (except as provided by subsection (4B)).
(4)
A Deputy Ombudsman and an Assistant Ombudsman
hold office for such term, not exceeding 5 years, as may be specified in the
instrument of appointment, but are eligible (if otherwise qualified) for
re-appointment.
(4A)
The employment of a Deputy Ombudsman and an
Assistant Ombudsman is (subject to this section) to be governed by a contract
of employment between the Deputy Ombudsman or Assistant Ombudsman and the
Ombudsman.
(4B)
The following provisions of or made under the
Government Sector Employment Act 2013
relating to the employment of Public Service senior executives apply to a
Deputy Ombudsman and an Assistant Ombudsman (but in the application of those
provisions a reference to the employer of any such executive is to be read as
a reference to the Ombudsman)—
(a)
provisions relating to the band in which an
executive is to be employed,
(b)
provisions relating to the contract of employment
of an executive,
(c)
provisions relating to the remuneration,
employment benefits and allowances of an executive,
(d)
provisions relating to the termination of
employment of an executive.
(4C)
The office of a Deputy Ombudsman or an Assistant
Ombudsman becomes vacant if the holder—
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Ombudsman, or
(d)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(e)
becomes a mentally incapacitated person,
or
(f)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable, or
(g)
is removed from office under subsection
(4B).
(5)
If a Deputy Ombudsman or an Assistant Ombudsman
is appointed as acting Ombudsman, he or she does not, on that account, cease
to be Deputy Ombudsman or an Assistant Ombudsman.
(6)
Despite subsection (2), section 6 (4) (b) does
not apply to or in respect of a Deputy Ombudsman or an Assistant Ombudsman if
the Deputy Ombudsman or Assistant Ombudsman engages in paid employment outside
the duties of the office of Deputy Ombudsman or Assistant Ombudsman with the
approval of the Ombudsman.
s 8: Am 1983 No 189,
Schs 1 (2), 2 (4); 1989 No 226, Sch 1. Subst 1991 No 3, sec 3. Am 2002 No 42,
Sch 3 [2]–[4]; 2014 No 21, Sch 1 [1]; 2014 No 33, Sch 3.21 [6]; 2017 No
63, Sch 1.13 [1] [2].
8ADeputy Ombudsman—functions
(1)
A Deputy Ombudsman may, to the extent to which he
or she is directed by the Ombudsman to do so, exercise any function of the
Ombudsman other than the following functions—
(a)
a function conferred or imposed by section 10,
10A, 21C or 30,
(b)
the power to accept or to refuse to accept a
delegation to which section 10B applies,
(c)
the power to exercise or to refuse to exercise a
function conferred on the Ombudsman as referred to in section
10B.
(2)
s 8A: Ins 1983 No
189, Sch 1 (3). Subst 1991 No 3, sec 3. Am 2001 No 56, Sch 1.9 [1]; 2002 No
42, Sch 3 [5]; 2020 No 30, Sch 1.29[1]–[3].
8BActing Deputy Ombudsman and Assistant
Ombudsman
(1)
The Ombudsman may, from time to time, appoint a
person to be an acting Deputy Ombudsman or Assistant Ombudsman, and the
Ombudsman may revoke any such appointment.
(2)
In the absence of a Deputy Ombudsman or an
Assistant Ombudsman, a person so appointed is to act in the place of the
Deputy Ombudsman or Assistant Ombudsman.
(3)
While acting in the place of a Deputy Ombudsman
or an Assistant Ombudsman, a person has all the functions of the Deputy
Ombudsman or Assistant Ombudsman and is taken to be a Deputy Ombudsman or an
Assistant Ombudsman.
s 8B: Ins 2002 No 42,
Sch 3 [6].
9
s 9: Am 1990 No 79,
Sch 1 (2). Rep 2020 No 30, Sch 1.29[4].
10Delegation
(1)
Subject to subsection (2), the Ombudsman may
delegate to an Assistant Ombudsman or an officer of the Ombudsman the exercise
of any functions of the Ombudsman, including any function which the Ombudsman
may exercise pursuant to section 10B.
(2)
The Ombudsman may not delegate the exercise
of—
(a)
any function to make any report under this Act,
except in accordance with subsection (2A),
(b)
any function conferred by section 10A or 21C, or
the power to accept or to refuse to accept a delegation to which section 10B
applies or the power to exercise or to refuse to exercise a function conferred
on the Ombudsman as referred to in that section,
(b1)
any function conferred by section 19 (2), other
than to an Assistant Ombudsman, or
(c)
the function conferred by subsection
(1).
(d), (e)
(2A)
The Ombudsman may delegate the exercise of the
function to make a report—
(a)
under section 26, 28 or 29, to an Assistant
Ombudsman, and
(b)
under section 28 or 29 (1) (a) or (2) (a), to an
officer of the Ombudsman.
(3)
A delegation under this section may be made
subject to conditions or limitations as to the exercise of any of the
functions delegated, or as to time or circumstances.
(4)
A delegation under this section must be made by
instrument in writing.
(5)
An instrument of delegation must
specify—
(a)
the functions the exercise of which is delegated,
and
(b)
any conditions or limitations on the
delegation.
(6)
The Ombudsman may revoke a delegation under this
section at any time, whether made by the Ombudsman or
not.
(7)
A delegation under this section is not revoked by
the happening of a vacancy in the office of Ombudsman or by an absence or
disability of the Ombudsman, except to the extent that the instrument of
delegation so provides.
(8)
During a vacancy in the office of Ombudsman, if
there is no acting Ombudsman, the Minister may revoke a delegation under this
section.
(9)
Notwithstanding any delegation made under this
section, the Ombudsman may continue to exercise all or any of the functions
delegated.
s 10: Am 1975 No 37,
sec 26 (a); 1983 No 189, Schs 1 (4), 2 (5); 1983 No 193, Sch 1 (3); 1985 No
213, Sch 1 (1); 1986 No 218, Sch 29; 1987 No 172, sec 3 (a), (b); 1989 No 226,
Sch 1; 2001 No 56, Sch 1.9 [1]; 2008 No 62, Sch 1.20; 2020 No 30, Sch
1.29[5]–[8].
10ADelegation to other Ombudsman
(1)
The Ombudsman may delegate the exercise of any
functions of the Ombudsman under sections 13A, 18, 19 (1), 20 and 23 to a
person who is empowered to exercise under a law of another State, the
Commonwealth or a Territory of the Commonwealth functions similar to the
functions exercised by the Ombudsman under this Act, where—
(a)
the Ombudsman is of the opinion that an
investigation authorised to be carried out by the Ombudsman under this Act may
more effectively or more appropriately be carried out by the person to whom it
is proposed the delegation be made, and
(b)
the delegation is for the purpose of enabling
that person to carry out that investigation.
(2)
A delegation under this section may be made
subject to conditions or limitations as to the exercise of any of the
functions delegated, or as to time or circumstances.
(3)
A delegation under this section must be made by
instrument in writing.
(4)
An instrument of delegation must
specify—
(a)
the functions the exercise of which is delegated,
and
(b)
any conditions or limitations on the
delegation.
(5)
The Ombudsman may revoke a delegation under this
section at any time, whether made by that Ombudsman or
not.
(6)
A delegation under this section is not revoked by
the happening of a vacancy in the office of Ombudsman or by an absence or
disability of the Ombudsman, except to the extent that the instrument of
delegation so provides.
(7)
During a vacancy in the office of Ombudsman, if
there is no acting Ombudsman, the Minister may revoke a delegation under this
section.
(8)
Notwithstanding any delegation made under this
section, the Ombudsman may continue to exercise all or any of the functions
delegated.
(9)
Where the exercise of a function is delegated
under this section, then, for the purpose of enabling a person to carry out an
investigation, as referred to in subsection (1) (b), that investigation shall,
for the purposes of—
(a)
the provisions of this Act which confer or impose
the delegated function, and
(b)
the provisions of sections 21 and
24,
be an investigation under this Act, and references in
those provisions to the Ombudsman shall be construed as including references
to the delegate.
(10)
Where the exercise of a function is delegated
under this section, the provisions of sections 34, 35 and 35A apply to and in
respect of the delegate and officers of the delegate in the same way as those
provisions apply to and in respect of the Ombudsman and officers of the
Ombudsman.
s 10A: Ins 1983 No
189, Sch 1 (5). Am 1990 No 79, Sch 1 (3); 1994 No 95, Sch 1.
10BDelegation from other jurisdictions
(1)
Where by or under the law of another State, the
Commonwealth or a Territory of the Commonwealth any function is conferred on
or delegated to the Ombudsman, the Ombudsman may—
(a)
exercise the function so conferred or may refuse
to exercise the function, or
(b)
accept the delegation and exercise the function
so delegated or may refuse to accept the
delegation.
(2)
Except where otherwise expressly provided, a
function exercised by the Ombudsman in pursuance of subsection (1) shall, for
the purposes of this Act, be deemed to be exercised in the course of the
Ombudsman’s office or in the execution of this Act, as the case may
require.
s 10B: Ins 1983 No
189, Sch 1 (5).
11Effect of certain acts etc
Any act or thing done, suffered or
omitted—
(a)
pursuant to this or any other Act by an acting
Ombudsman or a Deputy Ombudsman, or
(b)
pursuant to a delegation under section 10 or
10A,
has the same force and effect as if done, suffered or
omitted by the Ombudsman.
s 11: Am 1978 No 81,
Sch 1 (2); 1983 No 189, Sch 1 (6); 2002 No 42, Sch 3 [7].
Part 4Reports
25AA
s 25AA (formerly s
25A): Ins 1983 No 193, Sch 1 (7). Am 1993 No 38, Sch 4. Renumbered 1998 No
148, Sch 1 [2]. Rep 2016 No 61, Sch 6.35 [9].
26Report of investigation
(1)
Where, in an investigation under this Act, the
Ombudsman finds that the conduct the subject of the investigation, or any part
of the conduct, is of any one or more of the following kinds—
(a)
contrary to law,
(b)
unreasonable, unjust, oppressive or improperly
discriminatory,
(c)
in accordance with any law or established
practice but the law or practice is, or may be, unreasonable, unjust,
oppressive or improperly discriminatory,
(d)
based wholly or partly on improper motives,
irrelevant grounds or irrelevant consideration,
(e)
based wholly or partly on a mistake of law or
fact,
(f)
conduct for which reasons should be given but are
not given,
(g)
otherwise wrong,
the Ombudsman is to make a report accordingly, giving
his or her reasons.
(2)
In a report under this section, the Ombudsman may
recommend—
(a)
that the conduct be considered or reconsidered by
the public authority whose conduct it is, or by any person in a position to
supervise or direct the public authority in relation to the conduct, or to
review, rectify, mitigate or change the conduct or its
consequences,
(b)
that action be taken to rectify, mitigate or
change the conduct or its consequences,
(c)
that reasons be given for the
conduct,
(d)
that any law or practice relating to the conduct
be changed,
(d1)
that compensation be paid to any person,
or
(e)
that any other step be
taken.
(3)
The Ombudsman shall give a report under this
section—
(a)
to the responsible Minister,
(b)
to the head of the public authority whose conduct
is the subject of the report, and
(c)
where the public authority is a Public Service
employee, to the Department of Premier and Cabinet.
(4)
The Ombudsman may give a copy of a report under
this section—
(a)
where the investigation arises out of a complaint
to the Ombudsman, to the complainant,
(b)
to the public authority to whose conduct the
report relates.
(5)
The person to whom a report is given under
subsection (3) (b) may, and on request by the Ombudsman shall, notify the
Ombudsman of any action taken or proposed in consequence of a report under
this section.
s 26: Am 1983 No 189,
Sch 2 (7); 1989 No 226, Sch 1; 2014 No 33, Sch 3.21 [8].
26AAuthority to pay compensation
(1)
If the Ombudsman recommends in a report under
section 26 that compensation be paid to a person by a person other than a
local government authority, the responsible Minister—
(a)
at the request of the head of the public
authority whose conduct is the subject of the report, and
(b)
with the concurrence of the
Treasurer,
may authorise the payment of compensation to the person
out of the appropriate fund.
(2)
If the payment of compensation authorised under
this section is to be made by a Public Service agency within the meaning of
the Government Sector Employment Act 2013,
the Treasurer may authorise payment out of the Consolidated Fund (but not
otherwise), which is accordingly appropriated to the necessary
extent.
(3)
If the Ombudsman recommends in such a report that
compensation be paid to a person by a local government authority, the local
government authority may authorise the payment of compensation to that person
out of its funds.
(4)
The functions that may be delegated under section
377 of the Local Government Act
1993 by a council do not include a function relating to
the authorisation of the payment of compensation under this
section.
(5)
Nothing in any other Act prevents the payment of
compensation in accordance with an authority given under this section, and the
amount of compensation paid may be the same as, or may be more or less than,
any amount recommended in the Ombudsman’s report.
s 26A: Ins 1989 No
226, Sch 1. Am 1995 No 11, Sch 1; 2018 No 70, Sch 4.77[3].
27Default in consequent action
(1)
Where the Ombudsman is not satisfied that
sufficient steps have been taken in due time in consequence of a report under
section 26, the Ombudsman may make a report to the Presiding Officer of each
House of Parliament and must also provide the responsible Minister with a copy
of the report.
(2)
The responsible Minister must make a statement to
the House of Parliament in which the Minister sits in response to the report
not more than 12 sitting days after the report is made to the Presiding
Officer.
s 27: Am 1993 No 37,
Sch 1 (5).
28Serious misconduct
Where the Ombudsman is of the opinion that a
public authority is or may be guilty of misconduct in the course of his or her
functions to such an extent as, in the opinion of the Ombudsman, may warrant
dismissal, removal or punishment, the Ombudsman shall report the
opinion—
(a)
to the responsible Minister,
(b)
to the head of the public authority,
and
(c)
where the public authority is a Public Service
employee, to the Department of Premier and Cabinet,
giving reasons for the opinion.
s 28: Am 1983 No 189,
Sch 2 (8); 1989 No 226, Sch 1; 2014 No 33, Sch 3.21 [8].
29Report to complainant or the relevant
person
(1)
Where the Ombudsman investigates the conduct of a
public authority pursuant to a complaint made under section 12, the
Ombudsman—
(a)
may from time to time report to the complainant
on the progress of the investigation,
(b)
shall report to the complainant on the results of
the investigation, and
(c)
may make such comments to the complainant on the
investigation and its consequences as he or she thinks
fit.
(2)
Where the Ombudsman carries out any other kind of
investigation, the Ombudsman—
(a)
may from time to time report to the complainant,
or the person who made the disclosure or allegation that led to the
investigation, on the progress of the investigation, and
(b)
may report to the complainant, or the person who
made the disclosure or allegation that led to the investigation, on the
results of the investigation, and
(c)
may make any comments to the complainant, or the
person who made the disclosure or allegation that led to the investigation, on
the investigation and its consequences that the Ombudsman thinks
fit.
s 29: Am 1983 No 193,
Sch 1 (8); 1993 No 38, Sch 4; 2000 No 93, Sch 1.13 [3]; 2016 No 61, Sch 6.35
[10].
30Annual reports
(1)
The Ombudsman must, as soon as practicable after
30 June in each year, prepare a report of the Ombudsman’s work and
activities for the preceding 12 months and furnish the report to the Presiding
Officer of each House of Parliament.
(2)
The Annual Reports
(Departments) Act 1985 is, in its application to the
annual reports of the Ombudsman’s Office, modified as
follows—
(a)
letters of submission under that Act are to be
made to the Presiding Officer of each House of Parliament and not to the
appropriate Minister,
(b)
the annual report is to be submitted to the
Presiding Officer of each House of Parliament and not to the appropriate
Minister,
(c)
provisions of that Act relating to the
presentation of annual reports to the appropriate Minister and to the public
availability of annual reports do not apply to the Ombudsman or the
Ombudsman’s Office.
(3)
Section 31AA applies to the annual report of the
Ombudsman’s Office as if it were a report made or furnished under this
Part.
s 30: Am 1983 No 189,
Sch 2 (9). Subst 1993 No 37, Sch 1 (6).
30APublic availability of annual reports
(1)
The Ombudsman must, as soon as practicable after
an annual report has been tabled in each House of Parliament or made public by
a Presiding Officer, make copies of the report available for public sale or
distribution.
(2)
The regulations may make provision for or with
respect to the place or places at which the Ombudsman is to make copies of the
report available.
s 30A: Ins 1993 No
37, Sch 1 (6).
31Special report to Parliament
(1)
The Ombudsman may, at any time, make a special
report to the Presiding Officer of each House of Parliament and must also
provide the Minister with a copy of the report on any matter arising in
connection with the discharge of the Ombudsman’s
functions.
(2)
The Ombudsman may include in a report under
subsection (1) or under section 27 a recommendation that the report be made
public forthwith.
(3)
s 31: Am 1993 No 37,
Sch 1 (7).
31AAProvisions relating to reports
(1)Tabling
A copy of a report made or furnished to the
Presiding Officer of a House of Parliament under this Part must be laid before
that House on the next sitting day of that House after it is received by the
Presiding Officer.
(2)Public reports
If a report includes a recommendation by the
Ombudsman that the report be made public forthwith, the Presiding Officer of a
House of Parliament may make it public whether or not that House is in session
and whether or not the report has been laid before that
House.
(3)Privileges and immunities
A report that is made public by the Presiding
Officer of a House of Parliament before it is laid before that House attracts
the same privileges and immunities as it would if it had been laid before that
House.
(4)Report procedures
A Presiding Officer need not inquire whether all
or any conditions precedent have been satisfied as regards a report purporting
to have been made or furnished in accordance with this
Act.
s 31AA: Ins 1993 No
37, Sch 1 (8).
31ABOmbudsman may furnish information to ICAC and
DPP
(1)
The Ombudsman may, at any time, furnish
information obtained by the Ombudsman in discharging functions under this or
any other Act to the Director of Public Prosecutions or to the Independent
Commission Against Corruption.
(2)
However, the Ombudsman must not disclose
information that could not otherwise be disclosed under this Act or could
not—
(a)
in the case of the Director of Public
Prosecutions—be obtained by the Director under the Director of Public Prosecutions Act
1986 or any other Act, or
(b)
in the case of the Independent Commission Against
Corruption—be obtained by the Commission under the Independent Commission Against Corruption Act
1988 or any other Act.
s 31AB: Ins 1993 No
37, Sch 1 (8).
31ACOmbudsman may furnish information to public
authority
(1)
The Ombudsman may, at any time—
(a)
furnish to a public authority information
obtained by the Ombudsman in discharging functions under this Act with respect
to a complaint against or relating to the public authority,
and
(b)
make such comments to the authority with respect
to the complaint as he or she thinks fit.
(2)
The Ombudsman may also furnish any or all of the
information referred to in subsection (1) to any other public authority, and
may make such comments (if any) to that public authority as the Ombudsman
considers appropriate, if—
(a)
the Ombudsman is satisfied that the information
concerned is relevant to the functions, policies, procedures or practices of
that other public authority, and
(b)
the information does not disclose any personal
information (within the meaning of the Privacy and
Personal Information Protection Act 1998 or the Health Records and Information Privacy Act
2002).
s 31AC: Ins 2001 No
56, Sch 1.9 [4]. Am 2003 No 40, Sch 1.34 [2]; 2009 No 54, Sch 2.33
[4].
Part 5General
32Staff
(1)
Persons may be employed in the Public Service
under the Government Sector Employment Act
2013 to enable the Ombudsman to exercise his or her
functions.
(2)
The Ombudsman may, with the approval of the
responsible Minister, make use of the services of any public
authority.
(3)
A person who is employed for the purposes of
subsection (1), or whose services are made use of under subsection (2), is,
while the person is so employed, or while his or her services are so used, an
officer of the Ombudsman.
(4)
While a police officer is an officer of the
Ombudsman by reason of the services of the police officer being made use of
under subsection (2), the police officer retains rank, seniority and
remuneration as a police officer and may continue to act as a
constable.
(5)
s 32: Am 1983 No 189,
Sch 2 (10); 1983 No 193, Sch 1 (9); 1985 No 213, Sch 1 (2); 1987 No 172, sec 3
(c); 1993 No 38, Sch 4; 1998 No 54, Sch 1.13 [6]; 2014 No 33, Sch 3.21 [9];
2016 No 61, Sch 6.35 [18]; 2020 No 30, Sch 1.29[10].
33Preservation of certain rights
(1)
In this section superannuation
scheme means a scheme, fund or arrangement which is
established by or under an Act and which provides for superannuation or
retirement benefits.
(2)
Subject to subsection (3) and to the terms of
appointment, if the Ombudsman was, immediately before being appointed
Ombudsman, a Public Service employee or a contributor to a superannuation
scheme, the Ombudsman—
(a)
retains any rights accrued or accruing to the
Ombudsman as such an employee or contributor, and
(b)
may continue to contribute to any superannuation
scheme to which the Ombudsman was a contributor immediately before being
appointed Ombudsman, and
(c)
is entitled to receive any deferred or extended
leave and any payment, pension or gratuity under the superannuation
scheme,
as if the Ombudsman had continued to be such an employee
or contributor during his or her service as Ombudsman and—
(d)
the Ombudsman’s service as Ombudsman is
taken to be service as an employee for the purpose of any law under which
those rights accrued or were accruing, under which the Ombudsman continues to
contribute or by which that entitlement is conferred, and
(e)
the Ombudsman is taken to be an employee, and the
Minister is taken to be the Ombudsman’s employer, for the purposes of
the superannuation scheme to which the Ombudsman is entitled to contribute
under this subsection.
(3)
Where, but for this subsection, the Ombudsman
would be entitled under subsection (2) to contribute to a superannuation
scheme or to receive any payment, pension or gratuity under that scheme, the
Ombudsman shall not be so entitled upon becoming (whether upon being appointed
Ombudsman or at any later time while holding office as Ombudsman) a
contributor to any other superannuation scheme and the provisions of
subsection (2) (e) cease to apply to or in respect of the Ombudsman and the
Minister in any case where the Ombudsman becomes a contributor to another
superannuation scheme.
(4)
Subsection (3) does not prevent the payment to
the Ombudsman upon his or her ceasing to be a contributor to a superannuation
scheme of such amount as would have been payable to the Ombudsman had he or
she ceased, by reason of resignation, to be an employee for the purposes of
that scheme.
(5)
Subject to the terms of appointment, if the
Ombudsman was, immediately before being appointed Ombudsman, a Public Service
employee, the Ombudsman is—
(a)
if he or she ceases to hold office as Ombudsman
otherwise than pursuant to section 6 (5), and
(b)
if he or she is under the age of sixty
years,
entitled to be employed at a work level and salary not
lower than the level at which he or she was employed immediately before being
appointed Ombudsman.
(6)
The Ombudsman is not, in respect of the same
period of service, entitled to claim a benefit under this Act and another
Act.
s 33: Am 2015 No 58,
Sch 3.66 [3]–[5].
34Disclosures by Ombudsman or officer
(1)
The Ombudsman shall not, nor shall an officer of
the Ombudsman, disclose any information obtained by the Ombudsman or officer
in the course of the Ombudsman’s or officer’s office, unless the
disclosure is made—
(a)
where the information is obtained from a public
authority, with the consent of the head of that authority or of the
responsible Minister,
(b)
where the information is obtained from any other
person—
(i)
with the consent of that person,
or
(ii)
for the purpose of proceedings with respect to
the discipline of police officers before the Commissioner of Police or the
Industrial Relations Commission,
(b1)
to a police officer, the Department of
Communities and Justice or any other public authority that the Ombudsman
considers appropriate in the circumstances if the information relates to the
safety, welfare or well-being of a particular child or young person (or a
class of children or young persons),
(b2)
to any person if the Ombudsman believes on
reasonable grounds that disclosure to that person is necessary to prevent or
lessen the likelihood of harm being done to any person (but only if the
Ombudsman also believes on reasonable grounds that there is a risk of harm
(including self-harm) being done to any person),
(b3)
for the purpose of any proceedings under Part 5
of the Government Information (Public Access)
Act 2009 arising as a consequence of a decision made by
the Ombudsman in respect of an access application under that
Act,
(b4)
for the purpose of any proceedings under section
167A of the Police Act
1990,
(b5)
for the purpose of any proceedings under section
20 or 20B of the Public Interest Disclosures Act
1994,
(b6)
for the purpose of any criminal proceedings
resulting from an investigation under this Act, but only if the investigation
related (whether or not entirely) to a matter referred by the Inspector of the
Law Enforcement Conduct Commission to the Ombudsman for
investigation,
(c)
for the purpose of any proceedings under section
37 or under Part 3 of the Royal Commissions Act
1923 or Part 4 of the Special
Commissions of Inquiry Act 1983,
(c1)
to a police officer (or any other investigative
authority that the Ombudsman considers appropriate) for the purpose of making
any inquiry, or carrying out any investigation, to determine whether any
proceedings referred to in paragraph (c) should be instituted,
or
(c2)
to a registered medical practitioner or
registered psychologist in relation to the provision by that health
practitioner of medical or psychiatric care, treatment or counselling
(including but not limited to psychological counselling) to the Ombudsman or
an officer of the Ombudsman, or
(d)
for the purpose of discharging his or her
functions under this or any other Act.
Maximum penalty—10 penalty
units.
(2)
Subsection (1) does not prevent the Ombudsman
from furnishing any information relating to—
(a)
a matter arising under a law of another State,
the Commonwealth or a Territory of the Commonwealth, or
(b)
an undertaking that is or was being carried out
jointly by New South Wales and another State, the Commonwealth or a Territory
of the Commonwealth,
to a person exercising under a law of that other State,
the Commonwealth or that Territory, as the case may be, functions similar to
those exercised by the Ombudsman under this Act.
(2A)
Subsection (1) does not operate to render
admissible in evidence in any proceedings any document that would not have
been so admissible if this section had not been enacted.
(3)
(4)
If—
(a)
the Ombudsman, or an officer of the Ombudsman, is
to give evidence before, or to produce the whole or any part of a document to,
the Joint Committee, and
(b)
the evidence proposed to be given, or the whole
or any part of the document proposed to be produced, would disclose
information obtained by the Ombudsman or officer, in the course of his or her
office, from a public authority or other person, and
(c)
the public authority or other person has informed
the Ombudsman or officer that the information is
confidential,
the Ombudsman or officer must make a request under
section 31H (1) for the evidence to be taken in private or for a direction to
be given that the document, or part of the document, be treated as
confidential.
(5)
In the case of information obtained from a public
authority or other person as referred to in subsection (4), a reference in
section 31H to the consent in writing of a witness, in relation to the
disclosure or publication of evidence, is to be construed as a reference to
the consent in writing of the public authority or other
person.
s 34: Am 1978 No 81,
Sch 1 (3); 1983 No 189, Schs 1 (9), 2 (11); 1983 No 193, Sch 1 (10); 1984 No
153, Sch 16; 1990 No 48, Sch 1; 1990 No 79, Sch 1 (6); 1993 No 38, Sch 4; 1993
No 47, Sch 1; 1998 No 123, Sch 2.1 [1]; 2003 No 40, Sch 1.34 [3] [4]; 2004 No
55, Sch 1.15 [1] [2]; 2005 No 64, Sch 1.23 [1] [2]; 2009 No 54, Sch 2.33 [5];
2010 No 54, Sch 3.8; 2013 No 65, Sch 3 [1]; 2015 No 58, Sch 3.66 [6]; 2016 No
61, Schs 6.35 [19] [20], 7.3 [4]; 2019 No 25, Sch 5.27[3].
35Ombudsman, officer or expert as
witness
(1)
The Ombudsman shall not, nor shall an officer of
the Ombudsman who is not a member of the Police Force, be competent or
compellable to give evidence or produce any document in any legal proceedings
in respect of any information obtained by the Ombudsman or officer in the
course of the Ombudsman’s or officer’s
office.
(2)
Subsection (1) does not apply to any of the
following—
(a)
proceedings under section 19A, 19B, 19C, 21C,
35A, 35B or 37,
(b)
proceedings under Part 3 of the Royal Commissions Act
1923,
(c)
proceedings under Part 4 of the Special Commissions of Inquiry Act
1983,
(d)
proceedings under Part 5 of the Government Information (Public Access) Act
2009 arising as a consequence of a decision made by the
Ombudsman in respect of an access application under that
Act,
(e)
proceedings under section 167A of the Police Act 1990,
(f)
proceedings under section 20 or 20B of the
Public Interest Disclosures Act
1994,
(g)
criminal proceedings resulting from an
investigation under this Act, but only if the investigation related (whether
or not entirely) to a matter referred by the Inspector of the Law Enforcement
Conduct Commission to the Ombudsman for
investigation.
(3)
Subsection (1) applies to the following persons
in the same way as it applies to the Ombudsman and officers of the
Ombudsman—
(a)
a former Ombudsman,
(b)
a former officer of the
Ombudsman,
(c)
an Australian legal practitioner who is or was
appointed under section 19 (4) to assist the Ombudsman,
(d)
a person whose services are or were engaged under
section 23.
(4)
Subsection (3) extends to information obtained by
those persons before its substitution by the Ombudsman and
Public Interest Disclosures Legislation Amendment Act
2014.
(5)
The Committee on the Ombudsman, the Police
Integrity Commission and the Crime Commission is to review the operation of
subsections (3) and (4) as soon as possible after 5 March
2016.
s 35: Am 1983 No 189,
Sch 1 (10); 1983 No 193, Sch 1 (11); 1990 No 79, Sch 1 (7); 1994 No 95, Sch 1;
1998 No 123, Sch 2.1 [2]; 2005 No 64, Sch 1.23 [3]; 2009 No 54, Sch 2.33 [6]
[7]; 2013 No 65, Sch 3 [2]; 2014 No 86, Sch 1; 2016 No 61, Sch 6.35 [21]; 2019
No 14, Sch 1.14[3].
35AImmunity of Ombudsman and others
(1)
The Ombudsman shall not, nor shall an officer of
the Ombudsman, be liable, whether on the ground of want of jurisdiction or on
any other ground, to any civil or criminal proceedings in respect of any act,
matter or thing done or omitted to be done for the purpose of executing this
or any other Act unless the act, matter or thing was done, or omitted to be
done, in bad faith.
(2)
Civil or criminal proceedings in respect of any
act or omission referred to in subsection (1) shall not be brought against the
Ombudsman or an officer of the Ombudsman without the leave of the Supreme
Court.
(3)
The Supreme Court shall not grant leave under
subsection (2) unless it is satisfied that there is substantial ground for the
contention that the person to be proceeded against has acted, or omitted to
act, in bad faith.
(4)
An Australian legal practitioner assisting the
Ombudsman or representing a person at an inquiry held by the Ombudsman has the
same protection and immunity as a barrister has in appearing for a party in
proceedings in the Supreme Court.
s 35A: Ins 1983 No
189, Sch 1 (11). Am 1996 No 29, Sch 4 [8]; 2012 No 100, Sch 1
[3].
35BApplication to Supreme Court
(1)
Where any question arises as to the jurisdiction
of the Ombudsman to conduct an investigation or proposed investigation
(whether under this or any other Act), the Ombudsman, or any interested party,
may apply to the Supreme Court for a determination of that
question.
(2)
On an application made under subsection (1) the
Supreme Court may make such order as it considers
appropriate.
(3)
For the purposes of subsection (1), the following
persons are interested parties—
(a)
the public authority the conduct of which is the
subject of the investigation or proposed investigation,
(b)
the head of that public
authority,
(c)
if the investigation arises from the making of a
complaint under section 12 (1), the complainant.
(3A)
For the purposes of subsection (1), the following
persons are interested parties in relation to the investigation of a community
services complaint within the meaning of Part 4 of the Community Services (Complaints, Reviews and Monitoring) Act
1993—
(a)
a service provider or a provider of a visitable
service that is the subject of the investigation or proposed
investigation,
(b)
the chief executive or principal officer of that
service provider or service,
(c)
if the investigation arises from the making of a
complaint under that Act, the complainant.
(4)
This section has effect notwithstanding section
35A.
s 35B: Ins 1983 No
189, Sch 1 (11). Am 2002 No 42, Sch 3 [9] [10].
35CReferral of legal question to Civil and Administrative
Tribunal for advisory opinion
(1)
The Ombudsman may refer to the Civil and
Administrative Tribunal for the opinion of the Tribunal any legal question
arising out of any decision made in the exercise of any of the functions of an
agency that the Ombudsman is investigating, but only if the exercise of the
function is an administratively reviewable decision within the meaning of the
Administrative Decisions Review Act
1997.
(2)
On any such referral (and despite any contrary
provisions of the Civil and Administrative Tribunal Act
2013), the Tribunal may hold such hearings (if any) and
inform itself in such manner as it thinks appropriate for the purpose of
determining the proceedings for an opinion.
(3)
The decision of the Tribunal on any such referral
does not operate as a binding declaration of right.
(4)
In this section—
agency includes a service
provider or a provider of a visitable service within the meaning of the
Community Services (Complaints, Reviews and Monitoring) Act
1993.
s 35C: Ins 1997 No
77, Sch 6.4. Am 2002 No 42, Sch 3 [11]; 2013 No 95, Sch 2.108
[1]–[3].
35DInter-relationship between Ombudsman and
NCAT
(1)
The Ombudsman and President of the Civil and
Administrative Tribunal may enter into arrangements regarding any of the
following—
(a)
matters that the Tribunal will refer to the
Ombudsman where it considers that the matter can be the subject of a
complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be
more appropriate for the Ombudsman to deal with the
matter,
(b)
matters that the Ombudsman will refer to the
Tribunal where the Ombudsman considers that the matter can be the subject of
an administrative review application and that it would be more appropriate for
the Tribunal to deal with it,
(c)
matters that are the subject of an administrative
review application and that are also the subject of a complaint, inquiry,
investigation or other action under the Ombudsman Act
1974,
(d)
the co-operative exercise of the respective
functions of the Ombudsman and the Tribunal.
(2)
The Ombudsman and President are jointly to cause
notice of any arrangements entered into under this section to be published in
the Gazette as soon as is practicable after they are entered into. However, a
failure to publish any such arrangements does not affect their
validity.
(3)
The Ombudsman and the Civil and Administrative
Tribunal are empowered to exercise their functions in conformity with any
relevant arrangements entered into under this section.
(4)
An administrative review application may be made
to the Civil and Administrative Tribunal whether or not a complaint has been
made to the Ombudsman in relation to the decision.
(5)
Without limiting subsection (3)—
(a)
the Ombudsman may (despite anything in this Act)
decline, discontinue or defer a complaint made under this Act to give effect
to an arrangement entered into under this section, and
(b)
the Ombudsman may (despite any provision of this
Act but in conformity with the Civil and Administrative
Tribunal Act 2013) disclose any information to the
Tribunal duly obtained by the Ombudsman in relation to any matter referred to
the Civil and Administrative Tribunal to give effect to an arrangement entered
into under this section, and
(c)
the Tribunal may dismiss, adjourn or stay
proceedings relating to an administrative review application to give effect to
an arrangement entered into under this section, and
(d)
the Ombudsman may entertain any complaint under
this Act, or the Tribunal may entertain an administrative review application,
duly made by a person on the basis of a referral under arrangements entered
into under this section.
(6)
In this section—
administrative review
application has the same meaning as in the Civil and Administrative Tribunal Act
2013.
s 35D: Ins 2013 No
95, Sch 10.7.
35EReferral of online complaints about public
authorities
(1)
If the Ombudsman receives an online complaint
that appears to relate to the conduct of a public authority, the Ombudsman is
required to refer the complaint to the public authority.
(2)
The Ombudsman is not required to refer an online
complaint under subsection (1) if the Ombudsman is otherwise required to deal
with the complaint under this Act or any other Act.
(3)
This section does not apply to—
(a)
a complaint that may be dealt with under a
complaint referral arrangement under section 42, or
(b)
a matter that may be dealt with under an
arrangement between the Ombudsman and the President of the Civil and
Administrative Tribunal under section 35D.
(4)
In this section, online complaint
means a complaint (however described) that is made about a public authority
through an online system approved by the Minister that enables members of the
public to lodge complaints about public authorities
online.
s 35E: Ins 2017 No
63, Sch 1.13 [5].
36Incriminatory statement
(1)
Where, under section 18, a person is required to
give a statement that tends to incriminate that person, neither the
requirement nor the statement may be used in any proceedings against that
person except proceedings under section 37 (1) (c).
(2)
Subsection (1) applies whether the person
required to give a statement objects to giving it or
not.
37Offences
(1)
A person shall not—
(a)
without lawful excuse, wilfully obstruct, hinder
or resist the Ombudsman or an officer of the Ombudsman in the exercise of the
Ombudsman’s or officer’s powers under this or any other
Act,
(b)
without lawful excuse, refuse or wilfully fail to
comply with any lawful requirement of the Ombudsman or an officer of the
Ombudsman under this or any other Act, or
(c)
wilfully make any false statement to or mislead,
or attempt to mislead, the Ombudsman or an officer of the Ombudsman in the
exercise of the Ombudsman’s or officer’s powers under this or any
other Act.
Maximum penalty—10 penalty
units.
(2)
A person shall not directly or
indirectly—
(a)
where he or she is not the
Ombudsman—represent that he or she is the Ombudsman,
(b)
where he or she has not been appointed under
section 7 as acting Ombudsman—represent that he or she has been so
appointed,
(c)
where he or she is not a Deputy
Ombudsman—represent that he or she is a Deputy
Ombudsman,
(c1)
where he or she is not an Assistant
Ombudsman—represent that he or she is an Assistant
Ombudsman,
(c2)
where he or she has not been appointed under
section 8B as an acting Deputy Ombudsman or an Assistant
Ombudsman—represent that he or she has been so
appointed,
(d)
(d1)
where he or she is not a person to whom a
delegation has been made pursuant to section 10A—represent that he or
she is such a person,
(e)
where he or she is not an officer of the
Ombudsman—represent that he or she is an officer of the Ombudsman,
or
(f)
where he or she is not engaged in the
administration or execution of this Act or of any other Act in so far as it
confers or imposes on the Ombudsman or an officer of the Ombudsman any
function—represent that he or she is so
engaged.
Maximum penalty—10 penalty
units.
(3)
For the purposes of subsection (2), a person
represents that a state of affairs exists if the person does or says anything,
or causes, permits or suffers anything to be done or said, whereby it is
represented, or whereby a belief may be induced, that the state of affairs
exists.
(4)
A person who uses, causes, inflicts or procures
any violence, punishment, damage, loss or disadvantage to any person for or on
account of—
(a)
his or her making a complaint to the Ombudsman,
or
(b)
his or her assisting the Ombudsman,
or
(c)
any evidence given by him or her to the
Ombudsman,
is guilty of an indictable offence.
Maximum penalty—200 penalty units or
imprisonment for 5 years, or both.
(5)
An employer who dismisses any employee from his
or her employment, or prejudices any employee in his or her employment, for or
on account of the employee assisting the Ombudsman is guilty of an indictable
offence.
Maximum penalty—200 penalty units or
imprisonment for 5 years, or both.
(6)
In any proceedings for an offence against
subsection (5), it lies on the employer to prove that any employee shown to
have been dismissed or prejudiced in his or her employment was so dismissed or
prejudiced for some reason other than the reasons mentioned in subsection
(5).
(7)
In this section, a reference to a person
assisting the Ombudsman is a reference to a person who—
(a)
has appeared, is appearing or is to appear as a
witness before the Ombudsman, or
(b)
has complied with or proposes to comply with a
requirement under section 18, or
(c)
has assisted, is assisting or is to assist the
Ombudsman in some other manner.
s 37: Am 1978 No 81,
Sch 1 (4); 1983 No 189, Schs 1 (12), 2 (11) (12); 1993 No 47, Sch 1; 1996 No
29, Sch 4 [9]; 2002 No 42, Sch 3 [12]–[14]; 2020 No 30, Sch 1.29[11]
[12].
38Proceedings for offences
(1)
Except where otherwise expressly provided by this
Act, proceedings for an offence against this Act are to be dealt with
summarily before the Local Court.
(2)
If an offence against this Act is an indictable
offence, the Local Court may nevertheless hear and determine the proceedings
in respect of such an offence if the court is satisfied that it is proper to
do so and the defendant and prosecutor consent.
(3)
If, in accordance with subsection (2), the Local
Court convicts a person of such an offence, the maximum penalty that the court
may impose is—
(a)
in the case of an individual—the smaller
of—
(i)
a fine of 50 penalty units or imprisonment for 2
years, or both, or
(ii)
the maximum penalty otherwise applicable to the
offence when committed by an individual, or
(b)
in the case of a corporation—the smaller
of—
(i)
a fine of 100 penalty units,
or
(ii)
the maximum penalty otherwise applicable to the
offence when committed by a corporation.
s 38: Subst 1996 No
29, Sch 4 (10). Am 2007 No 94, Schs 2, 4.
39Regulations
The Governor may make regulations under this Act
for or with respect to prescribing all matters which by this Act are required
or permitted to be prescribed or which are necessary or convenient to be
prescribed for the purpose of carrying out or giving effect to this
Act.
40Savings and transitional provisions
Schedule 2 has effect.
s 40: Rep 1999 No 85,
Sch 4. Ins 2002 No 42, Sch 3 [15].