Ombudsman Act 1974

This Act may be cited as the Ombudsman Act 1974.

This Act, Part 3 excepted, commences on the date of assent to this Act.

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.

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.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

Aboriginal program, for Part 3B—see section 25K.

administration includes administration of an estate or a trust whether involving the exercise of executive functions of government or the exercise of other functions.

appointed day means the day appointed and notified under section 2 (2).

conduct means—

any action or inaction relating to a matter of administration, and

any alleged action or inaction relating to a matter of administration.

head means—

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

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

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

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

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

in any other case—the person prescribed by the regulations, or in the absence of any regulation prescribing a person, the person who, in the opinion of the Ombudsman, is the chief executive of the public authority.

Joint Committee means the joint committee called the Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission, constituted under this Act.

local government authority means a council, a county council or a joint organisation within the meaning of the Local Government Act 1993.

medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).

person includes an unincorporated body of persons.

public authority means the following—

any person appointed to an office by the Governor,

any statutory body representing the Crown,

any Public Service agency or any person employed in a Public Service agency,

any person in the service of the Crown or of any statutory body representing the Crown,

any person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013,

an auditable entity within the meaning of the Government Sector Audit Act 1983,

a person entitled to be reimbursed from public funds for expenses associated with attending meetings or carrying out the business of a body constituted by an Act,

any accreditation authority or registered certifier within the meaning of the Building and Development Certifiers Act 2018,

any body declared by the regulations to be a public authority for the purposes of this Act,

any holder of an office declared by the regulations to be an office of a public authority for the purposes of this Act,

any local government authority or any member or employee of a local government authority,

an approved charitable organisation, within the meaning of the Prevention of Cruelty to Animals Act 1979, to the extent the organisation’s conduct relates to the exercise of functions under that Act,

any person acting for or on behalf of, or in the place of, or as deputy or delegate of, any person described in any of the foregoing paragraphs.

psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW).

regulations means regulations made under this Act.

responsible Minister means—

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

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

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

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

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.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(Repealed)

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.

In this Act, a reference to—

a function includes a reference to a power, authority and duty, and

the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Notes included in this Act do not form part of this Act.

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.

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.

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.

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.

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.

A person is not eligible for appointment as Ombudsman if the person—

is a member of the Legislative Council or the Legislative Assembly, or

is a member of a House of Parliament of another State or of the Commonwealth.

The Ombudsman vacates the office of Ombudsman—

(Repealed)

if he or she engages in any paid employment outside the duties of the office, or

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

if he or she resigns the office by instrument in writing addressed to the Governor and the Governor accepts the resignation.

The Ombudsman may, at any time, be removed from office by the Governor upon the address of both Houses of Parliament.

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.

The Ombudsman is entitled to be paid—

remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and

such travelling and subsistence allowances as the Minister may from time to time determine in respect of the Ombudsman.

The Ombudsman has and may exercise the functions conferred or imposed on the Ombudsman by or under this or any other Act.

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.

A person is not to be appointed as Ombudsman until—

a proposal that the person be appointed has been referred to the Joint Committee under section 31BA, and

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.

A person may be proposed for appointment on more than one occasion.

In this section and section 31BA, appointment includes re-appointment.

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.

The Ombudsman may—

from time to time, appoint a Deputy Ombudsman or an Assistant Ombudsman to be an acting Ombudsman during an absence of the Ombudsman for a period of no more than 30 days, and

revoke the appointment.

An appointment of an acting Ombudsman by the Ombudsman is revoked on the appointment of an acting Ombudsman by the Governor.

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.

No person shall be concerned to inquire whether or not any occasion has arisen requiring or authorising an acting Ombudsman to act as Ombudsman.

An acting Ombudsman when acting as Ombudsman is taken to be the Ombudsman.

The Ombudsman may appoint one or more Deputy Ombudsman and Assistant Ombudsman.

The Ombudsman must appoint a Deputy Ombudsman as the Community Services Commissioner for the purposes of the Community Services (Complaints, Reviews and Monitoring) Act 1993.

The Ombudsman is to appoint a Deputy Ombudsman for the purpose of enabling the Ombudsman to monitor and assess Aboriginal programs under Part 3B.

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.

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)).

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.

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.

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)—

provisions relating to the band in which an executive is to be employed,

provisions relating to the contract of employment of an executive,

provisions relating to the remuneration, employment benefits and allowances of an executive,

provisions relating to the termination of employment of an executive.

The office of a Deputy Ombudsman or an Assistant Ombudsman becomes vacant if the holder—

dies, or

completes a term of office and is not re-appointed, or

resigns the office by instrument in writing addressed to the Ombudsman, or

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

becomes a mentally incapacitated person, or

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

is removed from office under subsection (4B).

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.

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.

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 function conferred or imposed by section 10, 10A, 21C or 30,

the power to accept or to refuse to accept a delegation to which section 10B applies,

the power to exercise or to refuse to exercise a function conferred on the Ombudsman as referred to in section 10B.

(Repealed)

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.

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.

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.