OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983
OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - TABLE OF ROVISIONS
TABLE OF PROVISIONS Section 1. Short title, &c. 2. Commencement 3. Amendment of title 4. Interpretation 5. Insertion of new section- 3A. Application of Act 6. Establishment of offices of Ombudsman and Deputy Ombudsman 7. Functions of Ombudsman 8. Discretion not to investigate certain complaints 9. Repeal of section 7 and substitution of new sections- 7. Complaints 7A. Preliminary inquiries 10. Investigations 11. Insertion of new section- 8A. Investigations by Commonwealth and State Ombudsmen 12. Power to obtain information and documents 13. Unreasonable delay in exercising power 14. Reference of question to the Administrative Appeals Tribunal 15. Insertion of new section- 11A. Powers of Federal Court of Australia 16. Repeal of section 12 and substitution of new section- 12. Complainant and Department, &c., to be informed 17. Reports by Ombudsman 18. Repeal of section 18 19. Annual reports and additional reports to Parliament 20. Insertion of new Part- PART IIA-ESTABLISHMENT, FUNCTIONS, POWERS AND DUTIES OF THE DEFENCE FORCE OMBUDSMAN 19A. Interpretation 19B. The establishment of office of Defence Force Ombudsman 19C. Functions of Defence Force Ombudsman 19D. Discretion to investigate complaints as Commonwealth Ombudsman or as Defence Force Ombudsman 19E. Discretion with respect to certain complaints 19F. Application of provisions of Act to Defence Force Ombudsman 21. Deputy Ombudsman 22. Suspension and removal of Ombudsman 23. Repeal of section 29 and substitution of new section- 29. Acting appointments 24. Ombudsman not to be sued 25. Repeal of section 34 and substitution of new section- 34. Delegation 26. Officers to observe confidentiality 27. Insertion of new section- 35A. Disclosure of information by Ombudsman 28. Offences 29. Protection from civil actions 30. Transitional OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 1. Short title.
An Act to amend the Ombudsman Act 1976, and for related purposes (Assented to 12 October 1983) Short title, &c. 1. (1) This Act may be cited as the Ombudsman Amendment Act 1983. (2) The Ombudsman Act 1976*1* is in this Act referred to as the Principal Act. OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 2. Commencement
2. (1) Subject to sub-section (2), this Act shall come into operation on the day on which it receives the Royal Assent. (2) Section 3, sub-section 4 (2) and sections 6, 20, 21 and 30 shall come into operation on a date to be fixed by Proclamation. OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 3. Amendment of title
3. The title of the Principal Act is omitted and the following title is substituted: ''An Act to provide for the appointment of a Commonwealth Ombudsman and a Defence Force Ombudsman and to define their respective functions and powers''.
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OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 4. Interpretation
4. (1) Section 3 of the Principal Act is amended- (a) by omitting from sub-section (1) the definition of ''Department'' and substituting the following definition: '' 'Department' means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth;''; (b) by omitting from sub-section (1) the definitions of ''enactment'' and ''enactment of the Northern Territory'' and substituting the following definitions: '' 'enactment' means- (a) an Act; (b) an Ordinance of the Australian Capital Territory; (c) an Ordinance of the Territory of Christmas Island or of the Territory of Cocos (Keeling) Islands; (d) an instrument made under an Act or under an Ordinance referred to in paragraph (b) or (c); or (e) a law (not being an Act, an Ordinance referred to in paragraph (c) or an instrument referred to in paragraph (d)) in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, but does not include the Norfolk Island Act 1979, the Northern Territory (Self-Government) Act 1978 or an enactment of Norfolk Island or of the Northern Territory; 'enactment of Norfolk Island' means- (a) a law or Ordinance referred to in paragraph (a), (b) or (c) of the definition of 'enactment' in sub-section 4 (1) of the Norfolk Island Act 1979; or (b) an instrument (including rules, regulations or by-laws) made under such a law or Ordinance; 'enactment of the Northern Territory' means- (a) a law or Ordinance referred to in paragraph (a) or (b) of the definition of 'enactment' in sub-section 4 (1) of the Northern Territory (Self-Government) Act 1978; or (b) an instrument (including rules, regulations or by-laws) made under such a law or Ordinance;''; (c) by omitting from the definition of ''Ordinance'' in sub-section (1) ''or the Northern Territory''; (d) by omitting from paragraph (a) of the definition of ''prescribed authority'' in sub-section (1) ''(not being an enactment of the Northern Territory)''; (e) by omitting from sub-paragraph (a) (ii) of the definition of ''prescribed authority'' in sub-section (1) ''constituted by, or includes'' and substituting ''required, or is expressly permitted, by an enactment to be constituted by, or to include''; (f) by omitting sub-paragraph (a) (v) of the definition of ''prescribed authority'' in sub-section (1) and substituting the following sub-paragraph: ''(v) a Royal Commission;''; (g) by omitting sub-paragraphs (b) (ii) and (iii) of the definition of ''prescribed authority'' in sub-section (1) and substituting the following word and sub-paragraph: ''; or (ii) an incorporated company over which the Commonwealth is in a position to exercise control;''; (h) by omitting from paragraph (c) of the definition of ''responsible Minister'' in sub-section (1) ''or sub-paragraph (b) (iii) of the definition of 'prescribed authority' is responsible for dealing with a matter'' and substituting ''of the definition of 'prescribed authority' is
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responsible for dealing with the matter''; (j) by omitting from paragraph (3) (a) ''or member of the Legislative Assembly of the Northern Territory''; (k) by omitting sub-section (4) and substituting the following sub-sections: ''(4) Where- (a) a person who is not an officer of a Department, or of a prescribed authority, for the purposes of this Act takes action in the exercise of a power or the performance of a function that the person is authorized to exercise or to perform, as the case may be, by reason of his holding an appointment made by, or by reason of authority given by, the Governor-General, a Minister or the Permanent Head of a Department; and (b) the person does not exercise the power or perform the function by reason of his holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment or by reason of his being a Judge of a court of, or a magistrate of, a State or Territory, the action shall be deemed to be taken, for the purposes of this Act, by the Department responsible for dealing with the matter in connection with which the action is taken. ''(4A) Notwithstanding sub-section (4), where a person is authorized to exercise a power or perform a function by reason of his holding an appointment made by, or by reason of authority given by, the Governor-General, a Minister or the Permanent Head of a Department 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 Act, by the Department responsible for dealing with the matter in connection with which the action is taken.''; (m) by inserting after sub-section (5) the following sub-section: ''(5A) Notwithstanding sub-section (5), where the person holding, or performing the duties of, an office established by an enactment is, under the regulations, not to be taken to be a prescribed authority for the purposes of this Act, 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 Act, be deemed not to be action taken by that Department.''; and (n) by omitting sub-section (7) and substituting the following sub-sections: ''(7) In this Act, 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 any action, to make a decision or recommendation or to formulate a proposal. ''(7A) In this Act, unless the contrary intention appears, a reference to the Ombudsman of a State shall be read as a reference to a person performing, under a law of the State, functions similar to the functions performed by the Ombudsman under Part II. ''(7B) For the purposes of a provision of this Act (other than this sub-section) in which a reference to the Ombudsman of a State occurs- (a) a reference to a State, in relation to the Ombudsman of a State, shall be read as including a reference to the Northern Territory; and (b) a reference to a law of a State, in relation to the Ombudsman of a State, shall be read as including a reference to an enactment of the Northern Territory.''. (2) Section 3 of the Principal Act is amended- (a) by inserting after the definition of ''Deputy Ombudsman'' in sub-section (1) the following definition: '' 'Deputy Ombudsman (Defence Force)' means the Deputy Ombudsman who is, by virtue of a notice under sub-section 23 (1) that is in force,
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designated as the Deputy Ombudsman (Defence Force);''; (b) by inserting after sub-section (6) the following sub-sections: ''(6A) For the purposes of this Act, action that is taken by a member of the Defence Force shall be deemed to be taken by the Defence Force if the member takes, or purports to take, the action by virtue of his being a member of the Defence Force, whether or not- (a) the action is taken in connection with, in the course of, or as incidental to, his service as a member of the Defence Force; or (b) the taking of the action is within his duties as a member of the Defence Force. ''(6B) Action taken by any person or persons by way of, or in connection with, the appointment of a person to be the Chief of Defence Force Staff, the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff is not action taken by the Defence Force or by a Department for the purposes of this Act. ''(6C) In this Act (other than sub-section (6A)), unless the contrary intention appears, a reference to a member of the Defence Force or of an arm or part of the Defence Force includes a reference to- (a) a person who has been a member of the Defence Force or of that arm or part of the Defence Force; or (b) a deceased person who was at any time before his death a member of the Defence Force or of that arm or part of the Defence Force.''; and (c) by adding at the end thereof the following sub-sections: ''(11) For the purposes of this Act (other than sub-section (6)), the Defence Force shall be deemed to be a prescribed authority. ''(12) In the application of this Act in relation to the Defence Force- (a) references in this Act to an officer of a prescribed authority shall be read as references to a member of the Defence Force; (b) references in this Act to the principal officer of a prescribed authority shall be read as references to the Chief of Defence Force Staff; and (c) references in this Act to the responsible Minister, in relation to a matter in relation to a prescribed authority, or in relation to action taken by a prescribed authority in or in relation to a matter, shall be read as references to the Minister for Defence or another Minister acting for and on behalf of the Minister for Defence. ''(13) For the purposes of this Act, any matter (including a report) concerning both the Defence Force and the Department of Defence may, by arrangement between the Defence Force Ombudsman, the Chief of Defence Force Staff and the principal officer of the Department of Defence, be communicated by the Defence Force Ombudsman to either the Chief of Defence Force Staff or the principal officer of that Department.''. OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 5.
5. After section 3 of the Principal Act the following section is inserted in Part I: Application of Act ''3A. This Act applies both within and outside Australia and extends to every external Territory.''. OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 6. Establishment of offices of Ombudsman and Deputy Ombudsman
6. Section 4 of the Principal Act is amended by omitting from paragraph (1) (b) ''2'' and substituting ''3''. OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 7. Functions of Ombudsman
7. Section 5 of the Principal Act is amended- (a) by omitting ''other'' from paragraph (1)(b); (b) by omitting paragraph (2) (c) and substituting the following paragraph:
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''(c) action taken by- (i) a magistrate or coroner for the Australian Capital Territory, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or (ii) a person who holds office as a magistrate in a State or the Northern Territory in the performance of the functions of a magistrate conferred on him by or under an Act;''; (c) by omitting from paragraph (2)(d) '', the Public Service of the Northern Territory''; (d) by adding at the end of paragraph (2)(d) ''or''; (e) by omitting paragraph (2) (f); and (f) by omitting sub-section (3) and substituting the following sub-sections: ''(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, and, for the purposes of this sub-section, action shall be deemed to have been taken by such a delegate notwithstanding that the action is taken in pursuance of a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister. ''(3A) For the purposes of the application of this Act to or in relation to the Ombudsman, action taken by a Department or by a prescribed authority shall not be regarded as having been taken by a Minister by reason only that the action was taken by the Department or authority in relation to action that has been, is proposed to be, or may be, taken by a Minister personally.''. OMBUDSMAN AMENDMENT ACT 1983 No. 61, 1983 - SECT. 8. Discretion not to investigate certain complaints
8. Section 6 of the Principal Act is amended- (a) by omitting paragraphs (1)(a), (b) and (c) and substituting the following paragraphs: ''(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 of the case.''; (b) by inserting after sub-section (1) the following sub-sections: ''(1A) Where a person who makes a complaint to the Ombudsman with respect to action taken by a Department or by a prescribed authority has not complained to the Department or authority with respect to that action, the Ombudsman may, in his discretion, decide not to investigate the action until the complainant so complains to the Department or authority. ''(1B) Where a person who makes a complaint to the Ombudsman with respect to action taken by a Department or prescribed authority has complained to the Department or authority with respect to that action, the Ombudsman may, in his discretion, decide not to investigate the action unless and until 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. ''(1C) Where-