Matters subject to investigation
13 Matters subject to investigation
Subject to this Act, the Ombudsman may investigate any administrative act or any suspected misconduct or maladministration in public administration.
The Ombudsman may make such an investigation either on receipt of a complaint or report or on the Ombudsman's own initiative and, where a complaint or report is made, the Ombudsman may investigate any act in the course of public administration notwithstanding that, on the face of it, the complaint or report may not appear to relate to that act.
Despite any other provision of this Act, if the Ombudsman becomes aware that—
an investigation under the Independent Commission Against Corruption
Act 2012 or other criminal investigation is being conducted in relation to a matter that is the subject of a complaint or is otherwise being investigated under this Act; or
a person has been or is to be charged with a criminal offence in relation to such a matter, the Ombudsman may not proceed to investigate or otherwise deal with the matter under this Act until the criminal investigation has been completed or the proceedings for the offence have been disposed of, withdrawn or permanently stayed.
The Ombudsman must not investigate any administrative act where—
the complainant is provided in relation to that administrative act with a right of appeal, reference or review to a court, tribunal, person or body under any enactment or by virtue of Her Majesty's prerogative;
or
the complainant had a remedy by way of legal proceedings, unless the Ombudsman is of the opinion that it is not reasonable, in the circumstances of the case, to expect that the complainant should resort or should have resorted to that appeal, reference, review or remedy or that it is in the public interest to continue the investigation under this
Act.
The ability to lay a complaint for disciplinary action against a person is to be disregarded for the purposes of subsection (3).
Despite subsection (3), the Ombudsman may investigate a prescribed child protection complaint.
To avoid doubt, subsection (3b) applies whether the prescribed child protection complaint—
is made by the Commissioner for Children and Young People, the
Commissioner for Aboriginal Children and Young People or the Guardian for
Children and Young People under the Children and Young People (Oversight and Advocacy Bodies)
Act 2016; or
is referred to the Ombudsman by the Commissioner under section 28A of the Health and Community Services
Complaints Act 2004; or
is made under this Act.
Without limiting any other provision of this Act, the Ombudsman, in respect of an investigation under subsection (3b), has any additional powers that the
Health and Community Services Complaints Commissioner would have under the
Health and Community Services Complaints
Act 2004 if the Commissioner were investigating such a complaint under that Act.
Without limiting any other provision of this Act, the Ombudsman must, in the course of an investigation under subsection (3b)—
have regard, and seek to give effect, to the Health and Community
Services Rights Charter under the Health and Community Services Complaints Act 2004, as in force from time to time;
where appropriate, have regard to any code of conduct prescribed under section 56A of the Health and
Community Services Complaints Act 2004.
The Ombudsman may investigate any administrative act, notwithstanding any enactment that provides that that administrative act is final or not to be appealed against, challenged, reviewed, quashed or called into question.
A reference in this or any other provision of this Act to an administrative act will be taken to include a reference to the service, activity or omission to which a prescribed child protection complaint relates.
In this section—
at risk has the same meaning as in the
Children and Young People (Safety)
Act 2016;
prescribed child protection complaint has the same meaning as in section 28A of the Health and Community Services Complaints
Act 2004.
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