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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Ombudsman Legislation Amendment Bill
2022
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Ombudsman Act 1974 No 68 3
Schedule 2 Amendment of Community Services (Complaints, Reviews and
Monitoring) Act 1993 No 2 9
Schedule 3 Consequential amendments to Public Interest Disclosures Act 2022
No 14 10
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2022
New South Wales
Ombudsman Legislation Amendment Bill
2022
Act No , 2022
An Act to make various amendments to the Ombudsman Act 1974 and the Community Services
(Complaints, Reviews and Monitoring) Act 1993.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Ombudsman Legislation Amendment Bill 2022 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Ombudsman Legislation Amendment Act 2022.
2 Commencement
This Act commences on the date of assent to this Act.
Page 2
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Ombudsman Act 1974 No 68
Schedule 1 Amendment of Ombudsman Act 1974 No 68
[1] Section 7 Acting Ombudsman
Insert after section 7(1)--
(1A) The Ombudsman may--
(a) 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
(b) revoke the appointment.
(1B) An appointment of an acting Ombudsman by the Ombudsman is revoked on
the appointment of an acting Ombudsman by the Governor.
[2] Section 8 Deputy Ombudsman and Assistant Ombudsman
Omit "and Disability" from section 8(1A).
[3] Section 11A
Insert before section 12--
11A Application of Part
This Part applies to a person who was a public authority in relation to conduct
occurring while the person was a public authority in the same way as it applies
to a public authority.
[4] Section 12 Right to complain
Omit section 12(3). Insert instead--
(3) If a person detained by, or in the custody of, a public authority (a detained
person) requests to make a complaint to the Ombudsman, the public authority
or other person superintending the detained person must--
(a) take all steps necessary to facilitate the making of the complaint by the
detained person, and
(b) if the complaint is made orally--make reasonable arrangements for the
detained person to make the complaint in a way that is not recorded or
monitored, and
(c) if the complaint is made in writing--send to the Ombudsman, as soon
as practicable, the written matter addressed to the Ombudsman,
unopened.
[5] Section 12A
Insert after section 12--
12A Referral of complaints about public authorities for investigation
(1) The Ombudsman may, if the Ombudsman considers it appropriate, refer a
complaint about the conduct of a public authority to the public authority for
investigation.
(2) The public authority must report to the Ombudsman on the outcome of the
referral.
(3) The Ombudsman may, when referring the complaint to the public authority,
make recommendations on whether, and in what way, the public authority may
investigate or otherwise deal with the complaint.
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Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Ombudsman Act 1974 No 68
(4) The Ombudsman may monitor the progress of the public authority's
investigation of the complaint.
(5) The public authority must, on the request of the Ombudsman, provide
documents and other information relating to the complaint.
(6) The Ombudsman may, if the Ombudsman considers it appropriate, also
continue to deal with the complaint.
(7) In this section--
complaint includes part of a complaint.
[6] Section 13AA Preliminary inquiries
Insert after section 13AA(5)--
(6) For a provision in another Act providing an exception to confidentiality or
non-disclosure, information provided in response to an inquiry made under
this section is taken to be information provided in response to a requirement
under this Act.
[7] Section 13A Dealing with complaint by conciliation
Insert after section 13A(6)--
(7) The Ombudsman may charge the public authority reasonable fees for the
following--
(a) a conciliation provided under this section,
(b) the engagement of a mediator to assist in the conciliation.
[8] Section 18
Omit the section. Insert instead--
18 Ombudsman may require information, document or other thing
(1) For an investigation under this Act, the Ombudsman may, by written notice,
require a public authority to do the following--
(a) give the Ombudsman a written or oral statement of information
specified or described in the notice,
(b) produce, in accordance with directions in the notice, a document or
other thing, or a copy of a document, specified or described in the
notice.
(2) The notice may--
(a) require a person to attend at a specified time and place to give an oral
statement of information, and
(b) specify the time within which the information must be provided.
[9] Section 19A Restriction on publication of evidence
Omit section 19A(3A). Insert instead--
(3A) It is not a contravention of a direction given under this section to provide
information or evidence--
(a) to a registered medical practitioner or registered psychologist for the
purposes of providing medical or psychiatric care, treatment or
counselling, including psychological counselling, to a person who has
given or may give evidence before an inquiry, or
Page 4
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Ombudsman Act 1974 No 68
(b) to an Australian legal practitioner to obtain legal advice or
representation in relation to an inquiry or an investigation relating to an
inquiry.
[10] Section 19B Publication of evidence given at inquiry
Omit section 19B(4). Insert instead--
(4) It is not a contravention of this section to provide information or evidence to--
(a) a registered medical practitioner or registered psychologist for the
purposes of providing medical or psychiatric care, treatment or
counselling, including psychological counselling, to a person who has
given or may give evidence before an inquiry, or
(b) an Australian legal practitioner to obtain legal advice or representation
in relation to an inquiry or an investigation relating to an inquiry.
[11] Section 25A
Insert after section 25--
25A Review of complaints handling systems
(1) The Ombudsman may review the systems of a public authority for handling
complaints.
(2) The Ombudsman may, in carrying out the review, require the head of the
public authority to provide information about the systems, including the
operation of the systems.
(3) The Ombudsman may--
(a) report on issues relating to the systems, and
(b) review the policies and performance of the public authority in relation
to handling complaints, and
(c) make recommendations the Ombudsman considers appropriate.
(4) A copy of a report containing recommendations--
(a) must be given to the relevant Minister in relation to the public authority,
and
(b) may be given to another person or body the Ombudsman considers
appropriate.
[12] Sections 26(3)(c) and 28(c)
Omit "Department of Premier and Cabinet" wherever occurring.
Insert instead "Public Service Commissioner".
[13] Section 31H Confidentiality
Insert after section 31H(3)--
(3A) The Ombudsman or an officer of the Ombudsman must make a request under
subsection (1) for evidence to be taken in private, or for a direction to be given
that a document, or part of a document, be treated as confidential, if--
(a) the Ombudsman or officer must give the evidence before, or produce
the whole or part of the document to, the Joint Committee, and
(b) the evidence proposed to be given, or the whole or part of the document
proposed to be produced, would disclose information obtained by the
Page 5
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Ombudsman Act 1974 No 68
Ombudsman or officer, in connection with the administration or
execution of this Act, from a public authority or other person, and
(c) the public authority or other person has informed the Ombudsman or
officer that the information is confidential.
(3B) If, at the request of the Ombudsman or an officer of the Ombudsman, evidence
referred to in subsection (3A) is taken by the Joint Committee in private--
(a) the Committee must not disclose or publish the whole or part of the
evidence without the written consent of the public authority or other
person, and
(b) a person, including a member of the Committee, must not disclose or
publish the whole or part of the evidence without--
(i) the written consent of the public authority or other person, and
(ii) the authority of the Committee under subsection (5).
Maximum penalty--20 penalty units or imprisonment for 3 months, or both.
[14] Section 31H(5)
Insert "or the consent of a public authority or other person under subsection (3B)" after
"subsection (3)".
[15] Section 34
Omit the section. Insert instead--
34 Disclosure of information
(1) The Ombudsman or an officer of the Ombudsman must not disclose
information obtained in connection with the administration or execution of
this Act unless the disclosure is made as follows--
(a) for information obtained from a public authority--with the consent
of--
(i) the head of the authority, or
(ii) the responsible Minister,
(b) for information obtained from another person--
(i) with the consent of the person, or
(ii) for proceedings relating to the discipline of police officers before
the Commissioner of Police or the Industrial Relations
Commission,
(c) for information relating to the safety, welfare or well-being of a child or
young person--to a police officer, the Department of Communities and
Justice or another public authority the Ombudsman considers
appropriate in the circumstances,
(d) to a person, if the Ombudsman believes on reasonable grounds that--
(i) disclosure to the person is necessary to prevent or lessen the
likelihood of harm being done to a person, and
(ii) there is a risk of harm, including self-harm, being done to a
person,
(e) for proceedings under the Government Information (Public Access) Act
2009, Part 5 arising as a consequence of a decision made by the
Ombudsman in relation to an access application under that Act,
(f) for proceedings under the Police Act 1990, section 167A,
Page 6
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Ombudsman Act 1974 No 68
(g) for proceedings under the Public Interest Disclosures Act 1994, section
20 or 20B,
(h) for criminal proceedings resulting from an investigation under this Act,
if the investigation related, whether or not entirely, to a matter referred
by the Inspector of the Law Enforcement Conduct Commission to the
Ombudsman for investigation,
(i) for proceedings under or in relation to the following--
(i) this section or section 19A, 19B, 19C, 31H or 37,
(ii) the Royal Commissions Act 1923, Part 3,
(iii) the Special Commissions of Inquiry Act 1983, Part 4,
(j) to a law enforcement agency for an inquiry or investigation to determine
whether proceedings referred to in paragraph (i) should be commenced,
(k) to a registered medical practitioner or registered psychologist in relation
to the provision of medical or psychiatric care, treatment or counselling,
including psychological counselling, by the Ombudsman or an officer
of the Ombudsman,
(l) for information that relates or may relate to a breach of a law of the
State, another State, the Commonwealth or a Territory--to a law
enforcement agency,
(m) to a Commission appointed under the Royal Commissions Act 1923,
(n) to a special inquiry set up under the Special Commissions of Inquiry Act
1983,
(o) in connection with the administration or execution of this Act.
Maximum penalty--50 penalty units.
(2) Subsection (1) does not prevent the Ombudsman from disclosing
information--
(a) to a person exercising functions under the law of another State, the
Commonwealth or a Territory, which are similar to the functions
exercised by the Ombudsman, if the Ombudsman is of the opinion the
disclosure is appropriate, or
(b) about a decision made by the Ombudsman under section 13, 13AA, 13A
or 15, including the commencement, progress, discontinuance or
conclusion of an investigation, or
(c) to correct a public record about--
(i) an investigation under this Act, or
(ii) the exercise of a function of the Ombudsman.
(3) In this section--
law enforcement agency means--
(a) the NSW Police Force, or
(b) a police force of another State or Territory, or
(c) the Australian Federal Police, or
(d) another authority or body responsible for the enforcement of the laws of
the Commonwealth or of the State or another State or Territory.
[16] Section 35 Ombudsman, officer or expert as witness
Omit section 35(2)(a). Insert instead--
Page 7
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Ombudsman Act 1974 No 68
(a) proceedings under or in relation to section 19A, 19B, 19C, 21C, 31H,
34, 35A, 35B or 37,
[17] Section 36
Omit the section. Insert instead--
36 Protection against self-incrimination
(1) If an individual is required to give a statement or evidence under section 18 or
19, the statement or evidence is not admissible in evidence against the
individual in criminal proceedings, other than proceedings under section
37(1)(c).
(2) Subsection (1) applies whether or not the individual objects to giving the
statement or evidence.
[18] Section 37 Offences
Omit "10 penalty units" wherever occurring in section 37(1) and (2).
Insert instead "50 penalty units".
[19] Schedule 1 Excluded conduct of public authorities
Insert ", unless the conduct relates to a matter referred to the Ombudsman by the Inspector
of the Commission under the Independent Commission Against Corruption Act 1988" after
"1988" in item 20.
[20] Schedule 1A Agencies
Omit "Children's Guardian".
Page 8
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 2 Amendment of Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2
Schedule 2 Amendment of Community Services (Complaints,
Reviews and Monitoring) Act 1993 No 2
[1] Section 4 Definitions
Omit section 4(1), definitions of Community and Disability Services Commissioner and
Community Services Division.
Insert in alphabetical order--
Community Services Commissioner means a Deputy Ombudsman appointed
as Community Services Commissioner under the Ombudsman Act 1974,
section 8(1A).
[2] Section 12 Community Services Division of Ombudsman's Office
Omit the section.
[3] Section 34C Establishment and composition of the Team
Omit "and Disability" wherever occurring in section 34C(2)(c) and (8).
[4] Section 34L Confidentiality of information
Insert after section 34L(1)(c)(vi)--
(vii) providing information to the Health Care Complaints
Commission established under the Health Care Complaints Act
1993 in connection with the Commission's functions, or
[5] Part 6A Audit of Interagency Plan relating to child sexual assault in Aboriginal
communities
Omit the Part.
Page 9
Ombudsman Legislation Amendment Bill 2022 [NSW]
Schedule 3 Consequential amendments to Public Interest Disclosures Act 2022 No 14
Schedule 3 Consequential amendments to Public Interest
Disclosures Act 2022 No 14
[1] Schedule 5 Amendment of Ombudsman Act 1974 No 68
Omit "(c2)" from Schedule 5[3]. Insert instead "(k)".
[2] Schedule 5[10]-[13]
Omit Schedule 5[10]-[13]. Insert instead--
[10] Section 34 Disclosure of information
Omit section 34(1)(g). Insert instead--
(g) for proceedings under the Public Interest Disclosures Act 2022,
section 33 or 37,
[11] Section 34(1)(i)(i)
Insert ", 31R, 31U" after "31H".
[11A] Section 34(1)(ka)
Insert after section 34(1)(k)--
(ka) if the information is identifying information--for a reason
specified in section 31Z(2),
[12] Section 34(3)
Insert in alphabetical order--
identifying information has the same meaning as in section 31Z.
[13] Section 35 Ombudsman, officer or expert as witness
Insert "31R, 31U," after "31H," in section 35(2)(a).
[3] Schedule 5[15] and [16]
Omit "10 penalty units" wherever occurring. Insert instead "50 penalty units".
Page 10
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