AGY-43 | New South Wales Ombudsman

Full description

The Ombudsman's Office was established in October 1974 under the terms of the Ombudsman Act which was assented to on 18 October 1974. The Ombudsman, an independent and impartial person, was authorised to investigate complaints by any person about the conduct of a New South Wales public authority (except those exempt by inclusion in the Schedule to the Act). (1) The first Ombudsman was appointed on 2 April 1975 and the Office commenced work on 12 May 1975. (3)

The Ombudsman (Amendment) Act 1976 (Act No.39, 1976), enacted in December, 1976, extended the Ombudsman's jurisdiction to cover the investigation of local government authorities. (4) The Police Regulation (Allegations of Misconduct) Act 1978 (Act No.84, 1978) clarified the Ombudsman's jurisdiction in regard to complaints about the Police. The Act stated that the Commissioner may cause a complaint to be investigated if the complaint was received by him or another member of the Police Force; or if he or the Deputy Commissioner or a member of the Internal Affairs Branch was notified of the complaint. (5)

However, an amendment to the Police Regulation (Allegations of Misconduct) Act in 1983 (Act No.191, 1983) gave the Ombudsman additional powers with respect to the constitution and functions of the Internal Affairs Branch of the Police Force and to make further provisions with respect to complaints about the conduct of members of the Police Force. (6)

In February 1984 the Ombudsman's Office was established as an administrative unit separate from the Premier's Department. (7)

In November 1987, the Ombudsman was declared to be an inspecting authority in terms of the Telecommunications (Interception) (New South Wales) Act 1987 (Act No. 290, 1987) and required regularly to inspect the records of authorities which intercept telephone calls and to report the results of these inspections to the Minister. (8)

The Ombudsman (Amendment) Act 1990 (Act No 79, 1990) established a Parliamentary Joint Committee on the Office of the Ombudsman (9) for the purpose of monitoring and reviewing the work of the Ombudsman. Other legislative change included the Freedom of Information Act 1989 (Act No.5, 1989) which authorised the Ombudsman to investigate complaints about the determination of Freedom of Information applications (10) and the Ombudsman (Amendment) Act 1991 (Act No.3, 1991) which authorised the Ombudsman to appoint a Deputy Ombudsman and an Assistant Ombudsman. (11)

The Community Services (Complaints, Reviews and Monitoring) Act 1993 (Act No.2, 1993) enabled the Ombudsman, by the creation of a Child Death Review Team (CDRT), to review the welfare, status, progress, circumstances and situation of a child, person or group of children in care; to hear or receive submissions; and to report to the relevant Minister in relation to the care service provider concerned. The role of the CDRT was to maintain a register of child deaths in NSW; classify deaths in the register according to cause, demographic criteria and other factors; analyse the register to identify patterns and trends; undertake research to prevent or reduce the likelihood of child deaths; make recommendations to government and community organisations about legislation, policies, practices and services; and report to the NSW Parliament on its work and activities. (12)

The Ombudsman (Amendment) Act 1993 (Act No.37, 1993) enabled the Ombudsman to present reports directly to the presiding officer of each House of Parliament, limited his powers to prevent the disclosure of privileged or secret information. (13) Changes to the Ombudsman Act in January 1991 removed the responsibilities under the Freedom of Information Act.

The Protected Disclosure Act 1994 (Act No.92, 1994), which commenced operation on 1 March 1995, appointed the Ombudsman as an investigating authority in relation to disclosures which show or tend to show maladministration. (14)

On 1 December 2002 the Community Services Division was established to monitor, review and inquire into services provided by the Department of Community Services, the Department of Ageing, Disability and Home Care and organisations which were funded by the Minister for Community Services, Ageing and Disability Services.

The Ombudsman Legislation Amendment Act 2022 was introduced in June 2022 and was assented to and commenced on 19 August 2022. This legislation extended the functions of the Ombudsman to include:
1. reviewing, reporting and making recommendations on the systems of public authorities for handling complaints,
2. referring complaints back to the relevant public authority for them to investigate,
3. charging a reasonable fee to the public authority for a voluntary conciliation by the Ombudsman (including, if required, the engagement of a mediator to assist),
4. information sharing with NSW royal commissions and special commissions of inquiry, or to correct the public record about the exercise of an Ombudsman function or an investigation under the Ombudsman Act. (15)

The Act also included amendments to clarify some existing functions and powers, including:
a) clarification that the Ombudsman may investigate the conduct of a person who was a public authority at the time of that conduct, even if they are no longer a public authority at the time of the investigation, for example, because it has been abolished (if an agency) or they have resigned (if an individual),
b) an amendment to make clear that anyone responding to our preliminary inquiries will not be in breach of any obligation of confidentiality or non-disclosure,
c) specification that, under s 18 of the Act, the Ombudsman can require a public authority to give an oral (as well as a written) statement at an arranged time and place,
d) an amendment to make clear that, when an inmate or detainee makes an oral complaint to us, corrective services staff or others must not monitor or record that conversation. (16)

Endnotes
1. Ombudsman Act 1974 s.12.
2. Report of the Ombudsman of NSW for the period 2 April, 1975-30 June, 1976, p.3.
3. NSW Government Gazette No.66, 9 May, 1975 p.1791.
4. Ombudsman (Amendment) Act, 1976 s.1.
5. The Police Regulation (Allegations of Misconduct) Act, 1978 ss.17-19.
6. Police Regulation (Allegations of Misconduct) Act 1983 (Act No.191, 1983).
7. NSW Public Service Notices, 7 March, 1984, pp.3-4.
8. Telecommunications (Interception) (New South Wales) Act 1987 ss.9-18.
9. Ombudsman (Amendment) Act, 1990 s.3.1.
10. Freedom of Information Act, 1989 s.52.
11 Ombudsman (Amendment), 1991 s.3.
12. Community Services (Complaints, Reviews and Monitoring) Act 1993 (Act No.2, 1993).
13. Ombudsman (Amendment) Act, 1993 Schedule 1.
14. Protected Disclosures Act, 1994 s.13 (4).
15. NSW Ombudsman Annual Report 2021-2022, pp.18-19.
16. Ibid. p.19.

References
(1) "Concise Guide" 2nd Edition. "Ombudsman's Office".
(2) NSW Government Directory, 1977/8-1996.
(3) NSW Ombudsman Annual Report, 1992-1995.
(4) DR 5399.
For further information on the current functions of the NSW Ombudsman please see NSW Ombudsman website.