OMBUDSMAN ACT 1973 - SECT 23 Procedure on completion of investigation
OMBUDSMAN ACT 1973 - SECT 23
Procedure on completion of investigationS. 23(1) amended by Nos 85/2012 s. 160(1), 30/2016 s. 70(4)(a).
(1) Where as a result of an investigation conducted under this Act (other than an investigation conducted under Division 1A or 2) the Ombudsman is of the opinion that the administrative action to which the investigation relates—
(a) appears to have been taken contrary to law;
(b) was unreasonable unjust oppressive or improperly discriminatory;
(c) was in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable unjust oppressive or improperly discriminatory;
(d) was taken in the exercise of a power or discretion, and was so taken for an improper purpose or on irrelevant grounds, or on the taking into account of irrelevant considerations;
(e) was a decision that was made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given;
(f) was based wholly or partly on a mistake of law or fact; or
(g) was wrong—
the Ombudsman shall take action as set out in subsection (2).
S. 23(2) amended by Nos 82/2012 s. 239(1), 30/2016 s. 70(4)(b).
(2) Where in a case referred to in subsection (1) the Ombudsman is of the opinion—
(a) that the subject-matter of the investigation should be referred to the appropriate authority for further consideration;
(b) that action could be, and should be, taken to rectify or mitigate or alter the effects of the action to which the investigation relates;
(c) that any practice in accordance with which the action was taken should be varied;
(d) that any law in accordance with which or on the basis of which the action was taken should be reconsidered;
(e) that reasons should be given for the action; or
(f) that any other steps should be taken—
the Ombudsman must report the Ombudsman's opinion and the reasons for it to the principal officer of the authority or, if there is no principal officer, to the responsible Minister for the authority, and may make any recommendations the Ombudsman thinks fit.
S. 23(2A) inserted by No. 85/2012 s. 160(2), amended by No. 2/2019 s. 79 (Sch. 1 Pt C item 28(a)).
(2A) On completion of an investigation on a relevant public interest complaint (other than a relevant public interest complaint about a member of Parliament) the Ombudsman—
(a) must report the findings of the investigation—
S. 23(2A)(a)(i) amended by No. 2/2019 s. 79 (Sch. 1 Pt C item 28(b)(i)).
(i) to the principal officer (if any) of the appropriate authority or public interest disclosure entity; or
S. 23(2A)(a)(ii) amended by No. 2/2019 s. 79 (Sch. 1 Pt C item 28(b)(i)).
(ii) if there is no principal officer, to the responsible Minister for the authority or public interest disclosure entity; or
S. 23(2A)(a)(iii) amended by No. 2/2019 s. 79 (Sch. 1 Pt C item 28(b)(ii)).
(iii) if the public interest complaint is about a Councillor, to the Mayor of the appropriate Council; and
(b) may make recommendations as to the action to be taken as a result of the investigation.
S. 23(3) amended by Nos 8884 s. 6(a), 79/2004 s. 72(1), substituted by No. 82/2012 s. 239(2), amended by No. 85/2012 s. 160(3)(a).
(3) If the Ombudsman makes a report or recommendations under subsection (2) or (2A), the Ombudsman—
(a) must send a copy—
S. 23(3)(a)(i) amended by Nos 85/2012 s. 160(3)(b), 2/2019 s. 79 (Sch. 1 Pt C item 28(c)).
(i) to the responsible Minister for the authority or public interest disclosure entity (unless the Ombudsman has made the report or recommendations to the responsible Minister under subsection (2)); and
(ii) if the authority is a member of staff of a Council, to the Mayor of the Council; and
(b) may send a copy to the Premier.
S. 23(4) amended by Nos 82/2012 s. 239(3)(a), 85/2012 s. 160(4), 2/2019 s. 79 (Sch. 1 Pt C item 28(d)).
(4) Where, under subsection (2) or (2A), the Ombudsman makes recommendations to the principal officer of, or responsible Minister for, an authority or a public interest disclosure entity, or the Mayor of the appropriate Council, the Ombudsman may request the principal officer or responsible Minister or Mayor to notify the Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendations or, if no such steps have been or are proposed to be taken, the reasons therefor.
S. 23(5) substituted by No. 8884 s. 6(b), amended by Nos 82/2012 s. 239(3)(b)(i), 85/2012 s. 160(5)(a)(b), 30/2016 s. 70(4)(c)–(e).
(5) Where it appears to the Ombudsman that no steps that seem to the Ombudsman to be appropriate have been taken within a reasonable time of the making of any report or recommendations under subsection (2) or (2A) the Ombudsman may, after considering the comments (if any) made by or on behalf of the principal officer or responsible Minister or Mayor to whom the report or recommendations were made, send—
(a) to the Governor in Council; and
S. 23(5)(b) amended by Nos 12/1989 s. 4(1)(Sch. 2 item 86.13), 74/2000 s. 3(Sch. 1 item 92), 82/2012 s. 239(3)(b)(ii), 85/2012 s. 160(5)(c).
(b) where the report relates to a complaint concerning an administrative action by a member of staff of a Council, to the Mayor of the Council; and
S. 23(5)(c) inserted by No. 85/2012 s. 160(5)(d), amended by No. 2/2019 s. 79 (Sch. 1 Pt C item 28(e)).
(c) where the report relates to a relevant public interest complaint about a Councillor or a member of staff of a Council, to the Mayor of the Council—
a copy of the report and the recommendations together with a copy of any such comments.
S. 23(6) substituted by No. 79/2004 s. 72(2).
(6) If a copy of any report and recommendations together with a copy of any comments has been sent to the Governor in Council under subsection (5), the Ombudsman may make a report to the Parliament on any of the matters to which the report and recommendations relate that the Ombudsman thinks fit.
S. 23(6A) inserted by No. 85/2012 s. 160(6).
(6A) The Ombudsman must not include in a recommendation under subsection (2) or (2A) any information that—
(a) is likely to lead to the identification of a person who has made an assessable disclosure; and
S. 23(6A)(b) amended by No. 2/2019 s. 79 (Sch. 1 Pt C item 28(f)).
(b) is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies.
S. 23(7) repealed by No. 82/2012 s. 239(3)(c).
* * * * *
S. 23A (Heading) amended by No. 2/2019 s. 79(Sch. 1 Pt C item 29).
S. 23A inserted by No. 85/2012 s. 161, amended by No. 2/2019 s. 79(Sch. 1 Pt C item 30).