Ombudsman Act 1972

This Act may be cited as the Ombudsman

Act 1972.

In this Act, unless the contrary intention appears—

act includes—

an omission;

a decision, proposal or recommendation (including a recommendation made to a Minister of the Crown), and the circumstances surrounding an act;

administrative act means—

an act relating to a matter of administration on the part of an agency to which this Act applies or a person engaged in the work of such an agency; or

an act done in the performance of functions conferred under a contract for services with the Crown or an agency to which this Act applies, but does not include—

an act done in the discharge of a judicial authority;

or

an act done by a person in the capacity of legal adviser to the

Crown or an agency to which this Act applies; or

an act of a class declared by the regulations not to be an administrative act for the purposes of this definition;

administrative unit means an administrative unit of the Public Service;

agency to which this Act applies means—

a person who holds an office established by an Act;

or

an administrative unit; or

a council; or

an assessment panel appointed or constituted under Part 6 Division

2 of the Planning, Development and

Infrastructure Act 2016; or

an incorporated or unincorporated body—

established or continued in existence for a public purpose by an

Act; or

established or continued in existence for a public purpose under an

Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or

subject to control or direction by the Governor, a Minister of the

Crown or other instrumentality or agency of the Crown or a council (whether or not the body is established or continued in existence by or under an Act);

or

a person or body declared by the regulations to be an agency to which this Act applies, but does not include an inquiry agency, the Office for Public

Integrity or a person or body declared by the regulations to be an agency to which this Act does not apply;

complainant in relation to an investigation means the person or persons whose complaint or report gave rise to that investigation;

complaint in relation to public administration, means a complaint that gives rise, or may give rise, to an investigation into an administrative act or other act in the course of public administration;

council means a council within the meaning of the Local Government

Act 1999;

inquiry agency means—

the Independent Commission Against Corruption; or

the Ombudsman; or

the Judicial Conduct Commissioner;

investigation means an investigation by the

Ombudsman under this Act in relation to an administrative act or other act in the course of public administration;

maladministration in public administration—see section 4;

misconduct in public administration—see section 4;

officer of the Ombudsman means—

a person employed in the Public Service and assigned to work in the office of the Ombudsman; or

a person employed under section 12;

OPI means the Office for Public Integrity established under the Independent

Commission Against Corruption Act 2012;

principal officer in relation to an agency to which this Act applies means—

if the agency consists of a single person (including a corporation sole but not any other body corporate)—that person;

if the agency is a council—the principal member of the council;

if the agency consists of an unincorporated board or committee—the presiding officer;

in any other case—the chief executive officer of the agency or a person declared by the regulations to be the principal officer of the agency;

public administration—without limiting the acts that may comprise public administration, an administrative act will be taken to be carried out in the course of public administration;

public authority has the same meaning as in the

Independent Commission Against

Corruption Act 2012;

public officer has the same meaning as in the

Independent Commission Against Corruption

Act 2012;

report means a report to the Ombudsman of a kind referred to in section 12D;

responsible Minister in relation to an agency to which this Act applies means—

if the agency is an administrative unit—the Minister responsible for that administrative unit;

if the agency is a council—the Minister responsible for the administration of the Local Government

Act 1999;

if the agency is a body established by or under an Act—the

Minister responsible for the administration of that Act;

in any other case—the Minister declared by the regulations to be the responsible Minister for the agency or, in the absence of such a declaration, the Minister responsible for the administration of this

Act;

Statutory Officers Committee means the committee of that name established under the Parliamentary Committees

Act 1991;

the Ombudsman includes a person acting in the office of the Ombudsman.

For the purposes of this Act—

a person engaged or employed in the administration of, or in the performance of functions in or on behalf of, an agency to which this Act applies will be taken to be engaged in the work of that agency;

and

deputy sheriffs and sheriff's officers will be taken to be engaged in the work of the sheriff and the sheriff will be regarded as an employer in relation to deputy sheriffs and sheriff's officers.

The Governor may, by regulation—

declare a person or body to be an agency to which this Act applies;

or

declare a person or body to be an agency to which this Act does not apply; or

declare a person to be the principal officer of an agency to which this Act applies; or

declare a Minister to be the responsible Minister for an agency to which this Act applies.

A regulation under subsection (3)(a) cannot take effect unless it has been laid before both Houses of Parliament and—

no motion for disallowance of the regulation is moved within the time for such a motion; or

every motion for disallowance of the regulation has been defeated or withdrawn, or has lapsed.

A regulation under subsection (3)(b) may declare part of an administrative unit to be part of an administrative unit to which this Act does not apply.

Misconduct in public administration means an intentional and serious contravention of a code of conduct by a public officer while acting in their capacity as a public officer that constitutes a ground for disciplinary action against the officer.

Maladministration in public administration—

means—

conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or

conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and

includes conduct resulting from impropriety, incompetence or negligence; and

is to be assessed having regard to relevant statutory provisions and administrative instructions and directions.

Without limiting or extending the conduct that may comprise misconduct or maladministration in public administration, this Act applies to conduct that—

occurred before the commencement of this section; or

occurs outside this State; or

comprises a failure to act; or

is conduct of a person who was a public officer at the time of its occurrence but who has since ceased to be a public officer; or

is conduct of a person who was not a public officer at the time of its occurrence but who has since become a public officer.

A reference in subsection (1) to a code of conduct does not include any statement of principles applicable in relation to the conduct of members of

Parliament.

Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members and powers under this Act may not be exercised in relation to any matter to which parliamentary privilege applies.

This Act does not apply to or in relation to any Commission or tribunal for the time being declared by proclamation to be a Commission or tribunal to which this Act does not apply.

This Act does not apply to or in relation to—

any complaint to which the Police Complaints and Discipline

Act 2016 applies; or

any matter to which that Act would apply if the matter were the subject of a complaint under that Act.

This Act does not apply to or in relation to—

any complaint to which the Judicial Conduct Commissioner Act 2015 applies; or

any matter to which that Act would apply if the matter were the subject of a complaint under that Act.

There is to be an Ombudsman with the following functions:

to receive, assess and investigate or otherwise deal with complaints made or referred to the Ombudsman about public administration;

to receive, assess and investigate or otherwise deal with reports about misconduct and maladministration in public administration made or referred to the Ombudsman;

to assist agencies to identify and deal with inappropriate or improper administrative acts;

to give directions or guidance to public authorities in dealing with misconduct and maladministration in public administration, as the

Ombudsman considers appropriate;

to evaluate the practices, policies and procedures of public authorities with a view to advancing comprehensive and effective systems for preventing or minimising misconduct and maladministration in public administration;

to conduct or facilitate the conduct of educational programs or the publication or distribution of educational materials designed to prevent or minimise misconduct and maladministration in public administration;

to perform other functions conferred on the Ombudsman by this or any other Act.

The Governor may, on a recommendation made by resolution of both

Houses of Parliament, appoint a person to be the

Ombudsman.

On a vacancy occurring in the office of the Ombudsman, the matter of inquiring into and reporting on a suitable person for appointment to the vacant office is referred by force of this subsection to the Statutory Officers

Committee.

The terms and conditions of appointment and employment (including salary and allowances) of the Ombudsman shall be as determined from time to time by the Governor.

This section is, without further appropriation, sufficient authority for the payment of the salary and allowances of the Ombudsman out of the General Revenue of the State.

The Ombudsman must not, without the consent of the Minister, engage in any remunerative employment or undertaking outside official duties.

If for any reason—

the Ombudsman is temporarily unable to perform official duties;

or

the office of the Ombudsman is temporarily vacant, the Governor may, by notice published in the Gazette, appoint a person to act in the office of the Ombudsman and a person so appointed has, while so acting, all the powers, functions and duties of the

Ombudsman.

A person who is a Public Service employee may be appointed under this section to act in the office of the Ombudsman while remaining a Public

Service employee for a term not exceeding three months and may, on the expiration of that term, be reappointed (provided that the terms of appointment do not exceed six months in aggregate in any period of 12 months).

Subject to this Act, the terms and conditions of appointment and employment (including the salary and allowances) of the person appointed under subsection (1) shall be as determined, from time to time, by the Governor.

This section is, without further appropriation, sufficient authority for the payment of the salary and allowances of an acting Ombudsman out of the General Revenue of the State.

The Ombudsman may, by instrument in writing, delegate powers or functions under this or any other Act (except this power of delegation) to any person.

The Ombudsman may by instrument in writing revoke or vary any delegation given under subsection (1).

The exercise or performance of any power or function by a delegate pursuant to subsection (1) does not affect the exercise or performance of that power or function by the

Ombudsman.

The Ombudsman shall be appointed for an initial term of

7 years.

A person appointed to be the Ombudsman is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Acting Ombudsman) that exceed 10 years in total.

The Governor may remove the Ombudsman from office upon the presentation of an address from both Houses of Parliament seeking the

Ombudsman's removal.

The Governor may suspend the Ombudsman from office on the ground of incompetence or misbehaviour and, in that event—

a full statement of the reason for the suspension must be laid before both Houses of Parliament within seven days of the suspension if

Parliament is then in session or, if not, within seven days of the commencement of the next session of Parliament; and

if, at the expiration of one month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Ombudsman's removal has not been presented to the Governor, the

Ombudsman must be restored to office.

The office of Ombudsman becomes vacant if the

Ombudsman—

dies; or

completes a term of office and is not reappointed; or

resigns by written notice delivered to the Governor;

or

is removed from office by the Governor under subsection (2); or

becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or

is convicted of an indictable offence or sentenced to imprisonment for an offence; or

becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative

Assembly of a Territory of the Commonwealth; or

becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office.

Except as is provided by this section, the Ombudsman shall not be removed or suspended from office, nor shall the office of the Ombudsman become vacant.

The Ombudsman is not a Public Service employee.

If an Ombudsman was, immediately before appointment as such, employed in the Public Service, the Ombudsman retains existing and accruing rights in respect of leave.