The NSW Ombudsman has weighed in on proposed legislative changes which could impact his jurisdiction to investigate complaints that may relate court proceedings.
In his report The Ombudsman’s jurisdiction to investigate when there are related court proceedings, Ombudsman Paul Miller said the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022 (FIC Bill) proposed an amendment to the Ombudsman Act 1974 which was “not legally necessary.”
Mr Miller (pictured) said the amendment set out in the FIC Bill related to his investigation decisions and stated: “To avoid doubt, the Ombudsman may investigate a complaint despite there being related court proceedings, either underway or anticipated, if, in the Ombudsman’s opinion, the investigation is unlikely to adversely effect those.”
“The amendment is not legally necessary,” Mr Miller said.
“The Ombudsman Act confers jurisdiction on the Ombudsman to investigate certain conduct, and that jurisdiction exists irrespective of whether there may be related court proceedings,” he said.
“The Ombudsman Act provides that the Ombudsman cannot investigate complaints about conduct of a public authority ‘relating to the carrying on of any proceedings’ before a court or any other person or body before whom witnesses may be compelled to appear and give evidence.”
Mr Miller said this exclusion only concerned conduct related to the carrying on of court proceedings.
However, the Ombudsman said occasionally Agencies would refuse a request for information or object to other Ombudsman action, asserting that he did not have jurisdiction to investigate the relevant conduct because it was or would be before the court.
He said Agencies had incorrectly referred to the exclusion as the basis for their refusal or objection.
“We do not accept that assertion and believe that it has no legal basis.”
Mr Miller said the issue was raised in the 2019 Family is Culture (FIC) Report and in an earlier 2017 Parliamentary Committee inquiry into the child protection system, both of which recommended that legislation be enacted to expressly confirm that the Ombudsman did have jurisdiction.
“Given the recommendations of the 2017 Parliamentary Committee and the 2019 FIC Report, and the fact that the issue continues to be raised by Agencies, there may be benefit in putting the Ombudsman’s jurisdiction beyond any possible doubt,” he said.
“Accordingly, although we do not think it is legally necessary to do so, the Ombudsman supports an amendment – provided it is expressed to be for the avoidance of doubt – to confirm that the Ombudsman may investigate despite any related court or other proceedings.”
However, Mr Miller said that if the change was to be enacted, a number of amendments should be made to the wording before it was passed.
The Ombudsman’s 22-page Report can be accessed at this PS News link.
