Supreme Court of Tasmania|2002-05-09|Before: Crawford J

Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24 (9 May 2002)

CITATION: Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24

Administrative Law -The Ombudsman - Tasmania - Investigation of administrative action - Action taken in a matter of administration - What constitutes - Whether maladministration necessary before investigation may occur - Power of Court limited to determining question of Ombudsman's jurisdiction to conduct the investigation - No power to review result of investigation.

Ombudsman Act 1978 (Tas), ss12(1)(2), 28(1) and 32(1).

Booth v Dillon (No 1) [1976] VicRp 23; [1976] VR 291; Glenister v Dillon [1976] VicRp 57; [1976] VR 550; Glenister v Dillon (No 2) [1977] VicRp 17; [1977] VR 151; Booth v Dillon (No 3) [1977] VicRp 16; [1977] VR 143; Botany Council v The Ombudsman (1995) 37 NSWLR 357, applied.

Judgment ID Number: [2002] TASSC 24

1 A child, A, suffered from an extremely rare progressive neurological disorder as a result of which she suffered disabilities, which included considerable difficulty in communicating information. According to a letter from the Director of Public Prosecutions, Mr T J Ellis, to the Ombudsman dated 7 August 2000, she "suffers from Mytachondrial Encephalopathy which results in her speech being severely hampered and her communications being based on gestures and one or two word answers". An allegation that she had been sexually assaulted was made to the police. In turn, the Director of Public Prosecutions considered the allegation, available evidence and the general circumstances. Under the Criminal Code, s310(4), it was necessary, before filing an indictment, that a Crown Law Officer should be satisfied that there was evidence against the accused person sufficient to put him on his trial or to raise a strong or probable presumption of his guilt.

2 On 21 July 1999, a senior crown counsel in the officer of the Director of Public Prosecutions wrote a letter to the child's mother. He advised (inter alia) that he found the evidence was not sufficient to raise a reasonable prospect of conviction. He pointed out that at trial it would be necessary for A to give evidence on closed circuit television; that she would probably suffer considerable stress; that her evidence would be challenged; that she would be cross-examined by defence counsel; that she would have little ability to answer questions; that a delay in reporting the assaults "is against us"; that the delay had created difficult problems as it made the time and date of the assault almost impossible to determine, whereas the High Court had ruled in a case that the occasion of the assault had to be stipulated or identified; that the accused had given an impressive account when interviewed by police; that there was no medical evidence to support the allegation; and that in fact the only evidence was that of A. Counsel stated that the child's circumstances would render prosecution difficult and unlikely of success.

3 On 31 August 1999, A's parents wrote to the Attorney-General. While acknowledging that senior crown counsel in the office of the Director of Public Prosecutions had been sympathetic to A's complaint, they expressed their outrage at what they perceived to be inadequacies in "the law system" and urged that it was time for the laws to be reassessed. On 16 November 1999, the Attorney-General replied defending the existing laws, explaining that the justice system must balance the need to prove allegations of criminal conduct against the possibility that innocent people might be convicted and pointing out that there were other considerations, such as the risk of harm being caused to some victims by proceeding with a case in which there is no realistic prospect of conviction. The Attorney-General expressed the view that the decision made by the office of the Director of Public Prosecutions appeared to be the most appropriate outcome.

4 On 18 January 2000, A's mother had a discussion with the Director of Public Prosecutions and on the next day the Director wrote to her with a comprehensive explanation of why it had been decided not to proceed against the accused man. The Director explained (inter alia) that he would not authorise any criminal prosecution unless he was satisfied that there was a reasonable prospect of conviction; that to obtain a conviction he was required to prove a charge beyond reasonable doubt upon the basis of admissible evidence; that what A had told others outside court was not admissible; and that a video interview of A might be admissible but only if she was able to be cross-examined. It was pointed out that A would have to be able to withstand being cross-examined at some length on videolink, that the questions and her answers "must be able to be either independently understood or independently and reliably translated, without assistance, embellishment or suggestion" and that the cross-examination must be able to be carried out in sufficient depth and with sufficient clarity to make the trial a fair one, not only fair to A but also fair to the accused. The Director discussed the possibility of a suitably qualified person getting to know A well enough to become an interpreter and mentioned that "there is a question of cost". The letter mentioned other difficulties in running a successful case. The Director invited A's parents to advise him if they wanted him to investigate retaining a named person's services as an interpreter. After explaining certain aspects of claims under the Criminal Injuries Compensation Act 1976, the Director concluded the letter by asking A's parents to make an appointment if they believed further discussion would be of benefit, but he advised that it was unlikely in the extreme that his attitude in respect of initiating criminal proceedings would change unless there was some new evidence available.

5 On 11 May 2000, the applicant, the Anti-Discrimination Commissioner, Dr J A Scutt, appointed under the Anti-Discrimination Act 1998, s5, wrote a letter to Mr Richard Bingham in his capacity as Secretary of the Department of Justice and Industrial Relations, stating that a claim had been received "by this Commission". The letterhead was entitled "Anti-Discrimination Commission". There is in fact no Commission under the Act, merely a Commissioner. The letter stated that A's parents had made a claim naming the Department as respondent and alleging on behalf of A, "discrimination on the basis of disability and age in the provision of services, goods and facilities to" A "by Tasmania Police and the Office of the Director of Public Prosecutions". The letter explained that the claim had been accepted for investigation because it disclosed possible breaches of the Anti-Discrimination Act, s16(b) and (k), which prohibited a person from discriminating against another on the grounds of age or disability. It explained that Ms Sharyn Newman, an investigation and conciliation officer with the Commission [sic] would be conducting the investigation on the applicant's behalf. Mr Bingham was asked to "please provide Ms Newman with your written response to the claim within 14 days".

6 On the face of the letter, a claim against the Department of Justice and Industrial Relations was erroneous because the Department was neither responsible for Tasmania Police nor the office of the Director of Public Prosecutions. However, the matter was explained further in a summary of the claim, which was enclosed with the letter from the applicant. In particular the summary explained that three issues would be investigated. The first concerned whether Tasmania Police had indirectly discriminated against A because of circumstances concerning her interview by police, which were detailed. The second concerned whether the Director of Public Prosecutions had "directly discriminated against" A "in the provision of services to her", the suggestion being that she "may have been treated less favourably due to the cost of obtaining an interpreter to assist her to give evidence". The summary of the claim made it clear that such a suggestion was considered to have been raised by the mention in the Director's letter of 18 January 2000 to A's parents that "there is a question of cost". The issue to be investigated concerning the Director was therefore narrowly limited. The third issue concerned whether "the Department of Justice and Industrial Relations may have indirectly discriminated against" A "on the basis of her disability and age" in view of the possibility, which had been raised, that "the justice system processes in general may disadvantage children with disabilities who are victims of crime and who wish the perpetrator of the crime to be prosecuted by the criminal justice system".

7 Under the Anti-Discrimination Act, s69, the applicant was empowered to investigate a complaint made in relation to discrimination. Under s71(1), an investigation could lead to dismissal of the complaint, conciliation or an inquiry. By s62(1)(b), a complaint was required to identify "against whom the complaint is made". According to what was sent by the applicant to Mr Bingham on 11 May 2000, the Department of Justice and Industrial Relations had been named as respondent to the claim, and I presume that it was for that reason that the applicant referred the claim to Mr Bingham, as secretary of that department, and sought his response. However, as I pointed out in the last paragraph, the Department was in no sense responsible for actions of Tasmania Police nor for the office of the Director of Public Prosecutions. The Director is an independent statutory officer, appointed by the Governor under the Director of Public Prosecutions Act 1973. Also, it is difficult to understand how the Department of Justice and Industrial Relations could be held accountable for "the justice system processes" which led to the Director's reticence about prosecuting. The material processes of that system have been established by the laws of Parliament and laws made by courts, for which the Department has no responsibility.

8 The Department referred the applicant's letter of 11 May 2000 to the Director, with a request that he represent it and reply. The Director dealt promptly with the matter by writing to the applicant on 17 May. He advised that he acted for the Department in the matter and presumed that the applicant had written to Mr Bingham as Secretary of the Department, because it was one of the objects of the complaint. He asked if she "could kindly let me have a copy of the original complaint in order to consider the response". The Director noted that the complaint had been construed as a complaint against him personally and he asked whether his response would also be invited.

9 The applicant did not answer the Director's letter, a failure which the Director, with justification, subsequently referred to as rude. Instead, on 28 May 2000, she wrote again to Mr Bingham. She made the point that she had received no reply from him. To be fair to Mr Bingham, no relevant complaint had been made against him and he had nothing to answer personally. The complaint had been made against the Department. The applicant made that clear in the letter, when she emphasised that the respondents to the claim were the Department of Justice and Industrial Relations and the Department of Police and Public Safety.

10 The applicant referred Mr Bingham to the Anti-Discrimination Act, s61(1)(b), which provides that "the Commissioner may authorise a person nominated by a respondent to act on behalf of the respondent". It was obvious that the Department wished the Director to act on its behalf. Although the original documentation of 11 May had been addressed to Mr Bingham, the Department was the respondent and not him and the Department was incapable of responding other than by a person with the necessary authority. Although the extent of the applicant's powers under s61(1) are disputable, the section gave her no right to require that Mr Bingham represent the Department. Her apparent insistence that only Mr Bingham was entitled to reply to the correspondence was plainly without justification.

11 The Department referred the applicant's letter of 28 May to the Director who once again wrote to the applicant on 27 June. He argued (inter alia) that s61 was permissive and gave the applicant no right to dictate who could or could not represent another. He repeated the request he had made in his letter of 17 May for a copy of the original complaint and purported to repeat a request, said to have been made by Mr Bingham on 13 June, for particulars of the actions of the Department of Justice and Industrial Relations which were claimed to be discrimination or prohibited conduct. Such a request for particulars was clearly justified.

12 Once again the applicant ignored the Director's communication and once again she wrote to Mr Bingham, this time on 14 July. She did not supply the requested particulars and made her attitude clear that the Department had not responded to the claim and she asked whether it would do so, stating that if she did not hear otherwise from Mr Bingham she would assume that the facts as stated by A's parents were correct and she would continue to investigate the claim on that basis.

13 However, knowing full well that it was the Department's wish that the Director represent it, the applicant relented when, in a further letter to Mr Bingham dated 31 July 2000, she stated that she authorised the Director "to represent the Department of Justice and Industrial Relations in this claim at this stage of the matter and henceforth, subject to section 61(2)", which empowers the applicant to withdraw an authorisation.

14 On 7 August 2000, the Director wrote to the Ombudsman a formal letter of complaint concerning administrative actions of the applicant. He articulated a number of complaints. As a consequence of receiving a letter of the same date from Ms Sharyn Newman, the investigation and conciliation officer in the applicant's office, and a copy of the letter dated 31 July from the applicant to Mr Bingham, the Director wrote again to the Ombudsman on 10 August articulating a further complaint. In another letter to the Ombudsman dated 15 August, the Director added an additional complaint arising out of a letter dated 10 August 2000 he had received from Ms Newman. I will return to all of the complaints, of which there were 10, in due course.

15 On 10 January 2000, a person, B, lodged a written claim with the applicant. It was expressed to be made about the Parliament of Tasmania. In brief, he stated that his claim arose out of the following matters. He had been a trade union secretary. Having been required to do so by letter from a Committee of the House of Assembly, which was conducting an inquiry into a matter, he was compelled by law to give evidence on oath before the Committee, after making it clear that he was attending in a private capacity and not on behalf of his employer. As a result of giving evidence to the Committee, his employer fired him. He explained that on an earlier occasion he had been called to give evidence before a select committee of the Legislative Council and was issued with a document "Procedure for Public Hearings" which explained, under the heading of "Parliamentary Privilege", that committee proceedings were accorded the same protection as proceedings in the Parliament itself. He asserted that the meaning of that was that no legal action could be taken against a witness by third parties in relation to evidence given at a hearing. B stated that he lodged an unfair dismissal claim in the Tasmanian Industrial Commission. The claim was dismissed. He had made written representations to the Privileges Committee of the Parliament but had not received any form of hearing or redress. It is my understanding that both the Legislative Council and House of Assembly have a Privileges Committee, and it is not clear whether he was claiming to have made representations to one only or both. He expressed his belief "that the situation was contrived in order to neutralise the vigour with which I pursued my duties in representing members of my employing organisation".

16 In a letter B asserted that "the Parliament of Tasmania were the instigators ... by the fact that they were the source of the original requirement for me to attend the Select Committee to give evidence". He stated that he was "convinced that the authors of the whole matter were members of the State Parliament and that they used the institution of that body to achieve their previously determined ends". He maintained that "the discrimination I am suffering is, and has been, continuous and ongoing" in that it had brought about the termination of his employment and consequent loss of income and he had been unable to obtain alternative employment.

17 The Parliament is constituted by the Governor, the Legislative Council and the House of Assembly. See Constitution Act 1934, s10. But the applicant did not pursue the complaint against the Parliament in that sense. Instead she wrote identical letters on the letterhead of the Anti-Discrimination Commission [sic], one addressed to the Speaker of the House of Assembly and the other to the President of the Legislative Council. She advised that a claim had been received from B alleging discrimination by the Parliament of Tasmania and naming the Parliament of Tasmania as respondent. The applicant expressed her concern that B appeared to have suffered detriment in his employment due to his appearance before the Legislative Council Select Committee. That concern seems to have been erroneous in one respect, for B had expressed his claim as arising out of his later appearance before the Committee of the House of Assembly. The applicant also advised that B alleged that he had made inquiries of the Privileges Committee which did not take any action to address his concerns. She explained that B's claim had been accepted for investigation as it disclosed possible breaches of the Anti-Discrimination Act, s16(l), (m) and (n). She asked the Speaker and the President to provide Ms Newman with written responses to the claim within 14 days.

18 On 22 March 2000, the President and the Speaker jointly responded that they were of the opinion the matter was beyond the jurisdiction given by the Act and that the Solicitor-General had confirmed their opinion. The applicant did not respond to that assertion. Instead on 31 March, she purported, in excess of her powers, to formally direct the President and the Speaker, under s97, to provide their responses to B's claim within 14 days. A direction under s97(1) could only be made if it required the provision of specified information. A direction to respond generally was not within the section.

19 On 12 April, the President and Speaker reaffirmed to the applicant their opinion that Parliament was not subject to the provisions of the Act and advised that they would like to be heard before the Tribunal established under the Act to resolve the issue of jurisdiction. The applicant then reported to the Tribunal, purportedly under s97(5).

20 All of what took place before the Tribunal was not in evidence before me. Subsequently, on 25 August 2000, the applicant required the President and the Speaker to provide specified information in documents, pursuant to s97. On 6 September the Director of Public Prosecutions wrote to the applicant confirming that he acted for the President and the Speaker. He stated that at the hearing before the Tribunal, which had held that the applicant had not been entitled to demand a "response", the applicant had articulated the matter of B's complaint she was investigating as being that Parliament (or the Speaker and/or the President) had failed or refused to place before Parliament B's claim of breach of what he alleged to be his parliamentary privilege. The Director asked for confirmation that the applicant was investigating that, and said that upon receipt consideration would be given to answering what the applicant had sent on 25 August.

21 The applicant once again ignored the Director. Instead she sent identical letters to the President and the Speaker on 13 September. She acknowledged that the Tribunal had given leave to the Director to represent them before it, but maintained that "the Tribunal is a different body from the Commission [sic]" and said that authorisation under s61 was needed should they wish to be represented by the Director while the matter was with the Commission [sic]. She then articulated:

"The Commission [sic] is investigating [B's] claim on the following basis:

A claim has been received by this Commission [sic] from [B], in which he alleged discrimination by the Parliament of Tasmania. The claim has been accepted for investigation as it discloses possible breaches of sections 16(1), 16(m) and 16(n) of the Anti-Discrimination Act 1998.

The Parliament of Tasmania has been named as respondent to the claim. I am concerned that [B] appears to have suffered detriment in his employment due to his appearance before the Legislative Council Select Committee ... [B] also alleges that he has made enquiries of the Privileges Committee which did not take any action to address his concerns. The Commission [sic] will investigate these allegations to see whether they breach the above sections of the Act.

As [B's] claim form (which accompanied the above letter) indicated, [B] also attended Parliament in relation to its inquiry [by the House of Assembly's Committee], which was the trigger for him being dismissed from his employment. Accordingly, the Commission's [sic] investigation extends to these matters."

22 On 19 September 2000, the Director wrote to the Ombudsman a formal letter of complaint concerning administrative actions of the applicant, articulating two complaints.

The complaints and the Ombudsman's investigation of them

23 During the course of the investigation of the Director's complaints, the person then holding office as Ombudsman ceased to do so and another person, holding office as Acting Ombudsman under the Ombudsman Act, s8, continued the investigation. In these reasons I will refer to the respondent or to the Ombudsman. If I refer to the latter, the reference may in fact include the respondent.

24 In the course of the investigations, the Ombudsman gave to the applicant ample opportunities to make representations, and she took comprehensive advantage of them. In a number of respects she challenged the Ombudsman's jurisdiction to conduct an investigation of the complaints, she complained that she had good reasons for apprehending that the Ombudsman was biased against her and she made detailed representations concerning the complaints on their merits. The respondent rejected the challenges to jurisdiction and complaints concerning bias.

25 The investigation of the complaints which arose out of the handling of the claim by A's parents, and which were made in the Director's letters to the Ombudsman of 7, 10 and 15 August 2000, was completed by June 2001. Pursuant to the Ombudsman Act, s28(2), the respondent prepared a final report and forwarded copies of it to the applicant, the Attorney-General as the responsible Minister and the Director as the complainant. I will summarise some of the contents of the report, in particular the individual complaints and the report's conclusions concerning them.

26 The complaint was that the applicant had accepted a complaint against the Director of Public Prosecutions, when the nature of his office was such that it did not involve the "provision of services, goods and facilities" to A or to any other individual.

27 The respondent found that the complaint was soundly based. Acknowledging that it raised legal issues, she had obtained advice about them from the Solicitor-General. The applicant had accepted for investigation a claim by A's parents alleging discrimination on the basis of disability and age in connection with the "provision of facilities, goods and services" by the office of the Director of Public Prosecutions. Under the Anti-Discrimination Act, s22(1)(c), the Act was expressed to apply to discrimination "in connection with ... [the] provision of facilities, goods and services". The respondent concluded that when a determination is made under the Criminal Code as to whether there is evidence sufficient to put a person on trial or to raise a strong or probable presumption of guilt, the Director is not providing a service, and as a matter of ordinary English, it would be artificial to describe the Director's decision as in any way relating to the provision of services, goods or facilities, as the applicant had done. Accordingly, the respondent found that the applicant should not have accepted a complaint against the Director in relation to that decision and in doing so, the applicant acted contrary to the law within the meaning of the Ombudsman Act, s28(1)(a).

28 The complaint was that the applicant failed to notify the Director of Public Prosecutions within 10 days (or at all) of the receipt by her of a complaint against him, as required by the Anti-Discrimination Act, s67.

29 The respondent was of the view that the applicant ought not to have characterised the complaint of A's parents as having been made against the Department alone, but ought to have determined, using a power enunciated by Cox CJ in Commissioner of Police v Reid [2000] TASSC 181; (2000) 9 Tas R 418, on the information available to her both in the complaint, and through her knowledge the applicant had as a legal practitioner, that one of the proper respondents to the complaint was the Director of Public Prosecutions, who was, like her, an independent statutory office holder. Accordingly, the respondent concluded that once the applicant had accepted the complaint of A's parents, she ought to have notified the Director within 10 days of the date of that acceptance. In fact at no time had she notified the Director that a complaint against him had been accepted. In those circumstances, the respondent concluded that the Commissioner had acted contrary to the law within the meaning of the Ombudsman Act, s28(1)(a).

30 The complaint was that the applicant accepted or determined that the Department of Justice and Industrial Relations was responsible for the "criminal justice system".

31 The respondent was not persuaded that the complaint had been substantiated. Ignoring the merits of the complaint of A's parents, which was not a matter about which she should be concerned, the respondent was of the view that the complaint to the applicant alleging some discrimination in how the Department carried out its responsibilities relating to the "criminal justice system" justified the Commissioner's actions in commencing to investigate the complaint.

32 The complaint was that the applicant provided a summary of the complaint made by A's parents that was not a true summary.

33 At the request of A's parents, the applicant had not provided the Director with a copy of their complaint. However the respondent was provided with a copy, and upon a consideration of it, she concluded that the summary of the complaint provided to the Secretary of the Department of Justice and Industrial Relations (but not to the Director) was an accurate representation of the complaints. The respondent concluded that the applicant had not contravened any of the criteria set forth in the Ombudsman Act, s28(1), in respect of the complaint.

34 The complaint was that the applicant ought not to have written to the Secretary of the Department of Justice and Industrial Relations when she knew that the Director was acting as his legal practitioner.

35 The respondent concluded that the applicant's action amounted to a lack of basic manners and observance of basic communication rules which required her to respond to the Director's letter by writing to him and not to his client. As a matter of good administrative practice, the applicant ought to have replied directly to a person who wrote to her. A correspondent is entitled to a direct reply to a letter and it was discourteous of the Commissioner not to have done so, particularly as the Director had asked a question that related to him personally.

36 Accordingly, the respondent concluded that the applicant had breached the Ombudsman Act, s28(1)(b), because her action was unreasonable.

37 The complaint was that the applicant had formulated an intention to treat the Anti-Discrimination Act, s61, as entitling her to "disallow" properly qualified legal practitioners from acting for their clients and had acted on that intention.

38 A major issue between the applicant on the one hand and the Director and the Department on the other hand, was the meaning of s61 and the extent of the applicant's powers pursuant to it. The Director had argued that the section was permissive, in that it enabled the applicant to authorise a person to act for another when they would be unable to do so, for example by being in breach of the Legal Profession Act 1993, s54. It appeared to the respondent, from statements made by the applicant concerning her policy pursuant to s61, that what the applicant was saying was that, although a claimant or respondent could seek legal advice at any time, a legal practitioner was not permitted to write or speak to the applicant directly on behalf of a client without her express authorisation.

39 The respondent obtained advice from the Solicitor-General that it is a common law right of persons generally to have access to legal advice and assistance and that such a right will not be abrogated by legislation unless the legislative intent to remove or detract from it is clear. The Solicitor-General advised that to give s61 some meaningful content, it should be read as being permissive rather than obligatory. The intention of the section was to give the applicant a capacity, which was not required in the case of legal practitioners acting for a person, to authorise persons to act on behalf of a complainant or respondent. The Solicitor-General referred to a union official as an example of a person who might be so authorised.

40 The respondent did not determine the correct interpretation of s61, although she preferred the view of the Solicitor-General and the Director to that of the applicant. She concluded that no adequate reason had been demonstrated by the applicant for her refusal to even acknowledge the Director's letter of 17 May 2000 or to respond to it. It was bad administration, if nothing else, for a person in the applicant's position to ignore correspondence from anyone, particularly a legal practitioner representing the respondent to a complaint made to the applicant. The respondent was of the view that it made no administrative sense for the applicant to force a party to engage in the charade of writing letters, composed on their behalf by a legal practitioner, when the applicant could correspond directly with the practitioner. That would be the end result of the policy adopted by the applicant. The respondent considered that it would make a nonsense of the applicant's claimed "aim ... to ensure that the process can be conducted in a way that provides for the greatest expedition with the least formality conducive to the proper investigation, conciliation and resolution, taking into account at all times the rights of all of the parties to natural justice". Forcing a party who wished to be represented by a legal practitioner to justify at length why that representation was necessary was not a good way of providing "expedition", "least formality" or "conciliation and resolution". It was the respondent's view that instead it was a good way of ensuring that good time and goodwill was wasted in side issues, as clearly occurred in this matter.

41 The respondent concluded that the applicant had demonstrated, by her actions in ignoring correspondence from the Director and by continuing to correspond directly with his client, that she had adopted and acted upon, as claimed by the Director, an intention to disallow properly qualified legal practitioners from acting for their clients. The respondent held that in doing so the applicant was acting unreasonably within the meaning of the Ombudsman Act, s28(b). However the respondent acknowledged that the applicant eventually did authorise the Director to act on behalf of the Department.

42 The complaint was that the statement by the applicant in a letter dated 14 July 2000 to the Director of Public Prosecutions' client, the Secretary of the Department of Justice and Industrial Relations, falsely accused the Director of being defamatory of the applicant.

43 The respondent concluded that whether or not the Director had been defamatory of the Commissioner was not a matter for her to determine and that instead the applicant should pursue her claim in the courts if she wished to pursue it at all. She regarded the Director's statement, of which the applicant complained, to be a robust one and unfortunately characteristic of the correspondence between the Director and the applicant. However she did not regard the complaint of a false accusation of defamation as being one that ought to be investigated by her, because nothing could be achieved by continuing to investigate the matter, and accordingly, the respondent determined to discontinue further investigation pursuant to the Ombudsman Act, s21(1)(d). The respondent urged the applicant and the Director to adopt restrained and measured language in any mutual correspondence in the future, an urging which I find was justified upon my reading of the correspondence.

44 The complaint was that the spreading by the applicant to the Commissioner of Police or the Police Department of a serious allegation against the Director of Public Prosecutions was contrary to the Anti-Discrimination Act, s69(2), which provided that in investigating a complaint, the applicant was to have regard to the desirability of maintaining the confidentiality of all persons involved in the investigation.

45 The complaint arose out of a suspicion by the Director that the summary of claim, sent by the applicant to the Secretary of the Department of Justice and Industrial Relations, had also been sent in an unexpurgated form to the Commissioner of Police or to the Police Department.

46 The respondent was not persuaded that the complaint had been substantiated. If A's parents had consented, a copy of their complaint could quite properly have been sent both to the Department and to the police pursuant to s67. In the circumstances, sending a summary of the complaint to those referred to in it was a reasonable thing to do. It enabled each respondent to understand the whole context of the complaint being faced.

47 The complaint was that the Director of Public Prosecutions (more correctly, the Department of Justice and Industrial Relations) had not been given the right to make submissions as to A's parents being authorised to have legal representation, whereas the applicant had given A's parents the opportunity to make such submissions in respect of legal representation for the Department.

48 The respondent found that the applicant consulted with A's parents before authorising the Director to act on behalf of the Department. The respondent also found that the Department was not consulted before the applicant authorised, as she did, a legal practitioner to act on behalf of A's parents.

49 Because the respondent accepted that parties are entitled to legal representation, she considered it unnecessary and undesirable for other parties to be "consulted" as to that right. She regarded such consultation as a waste of time and misleading. The applicant should not have required the Department to seek approval to be legally represented, especially when she had already approved such representation for the complainants. To have referred to A's parents the Department's wish to have the Director represent it was wrong. It was an inappropriate use of the applicant's resources and utterly unnecessary.

50 The respondent concluded that the applicant was wrong, to the extent that she consulted with A's parents about whether she should authorise the Director to act on behalf of the Department.

51 The complaint was that in a letter to the Director of Public Prosecutions dated 10 August 2000, a member of the applicant's staff used words that were offensive and inappropriate.

52 The staff member was Ms Newman. The words used by her, which were the subject of the complaint, were:

"Accordingly, I will now turn the Summary of Claim into a set of questions, which I hope will satisfy your urge to receive a request for 'specific information'."

53 The respondent was in no doubt that the words were both offensive and unprofessional and expressed her concern that in her response to the respondent concerning the complaint, the applicant expressed surprise about it. The respondent expressed her surprise that Ms Newman was quoted by the applicant as being "equally puzzled". The respondent, in her report, pointed out that sound administrative practice required the applicant and her staff, whilst they may be firm in appropriate cases, to couch correspondence in language that is polite and not provocative. The applicant was an impartial investigator of complaints, not a partisan representative of one party or the other. In the respondent's opinion the words complained of went far beyond what was called for and were both offensive and unprofessional. Ms Newman was invited by the respondent to make representations, but she declined to do so, other than to express her disagreement with the respondent's view.

54 The respondent concluded that Ms Newman ought not to have responded in the manner in which she did, and in doing so acted unreasonably within the meaning of the Ombudsman Act, s28(1)(b).

55 It should be recorded that the respondent found that Ms Newman's words, which were found to be offensive and unprofessional, were written in response to a letter from the Director of Public Prosecutions which contained a statement that was intended to be provocative and which was also uncalled for.

56 In a conclusion to her report, the respondent stated that the investigation had concerned her and that it had revealed a degree of apparent animosity between two very senior officers which she considered to be unproductive and unbecoming. She made a number of recommendations to the applicant with regard to her future handling of the complaint of A's parents, insofar as it was made against the Director, and with regard to her future handling of complaints in general.

57 The investigation of the complaints which arose out of the handling of the claim by B, and which were made in the Director's letter to the Ombudsman of 19 September 2000, has not been completed. It reached the stage where by 3 July 2001 she considered that she had concluded her investigation, prepared a draft report and forwarded a copy of it to the applicant for comment before the report was finalised. I will summarise some of the contents of the report, in particular the individual complaints and the draft report's conclusions concerning them. There were two complaints, and for ease of reference, I will number them 11 and 12. I add that it appears from the contents of the completed report and the draft report that the applicant's complaint concerning bias was only made with respect to the respondent's investigation into the Director's complaint arising out of the applicant's handling of the complaint of A's parents, and not with respect to her investigation into the Director's complaint arising out of the applicant's handling of the complaint of B. The applicant did however dispute the Ombudsman's jurisdiction with regard to both matters.

58 The complaint was that the applicant did not respond to the letter dated 6 September 2000 from the Director of Public Prosecutions to her but rather to his clients.

59 In the draft report, the respondent concluded as she had done in the case of complaint 5, that the applicant's action in writing a response to the Director's letter, not to him, but to his client, amounted to a lack of basic manners and observance of fundamental communication rules. As a matter of good administrative practice, she ought to have replied directly to the person who wrote to her. A correspondent is entitled to a direct reply to a letter and, in the respondent's draft view, it was discourteous of the applicant not to have responded directly to the Director's letter, particularly as he had asked a question that related to him personally.

60 Accordingly, the respondent's draft opinion was that the action of the applicant in not responding to the Director's letter, and instead writing to his client, was unreasonable within the meaning of the Ombudsman Act, s28(1)(b). The respondent thought that to be particularly so, having regard to the fact that the client was a body such as Parliament, which could not respond on its own behalf and "is surely entitled to do so through its chosen agent, in this case the DPP".

61 The complaint was that the applicant had advised the clients of the Director of Public Prosecutions that the Anti-Discrimination Act, s61, had the effect that should they wish the Director to act for them, they needed to apply to her in writing for such authorisation.

62 As I noted when dealing with complaint 6, the respondent obtained advice from the Solicitor-General that it is a common law right of persons generally to have access to legal advice and assistance and that such a right will not be abrogated by legislation unless the legislative intent to remove or detract from it is clear. The Solicitor-General advised that to give s61 some meaningful content, it should be read as permissive rather than obligatory. The intention of the section was to give the applicant a capacity, which was not required in the case of legal practitioners acting for a person, to authorise persons to act on behalf of a complainant or a respondent. The Solicitor-General referred to a union official as an example of a person who might be so authorised.

63 The respondent did not determine the correct interpretation of s61. She regarded that "what is at issue here is the Commissioner's adoption of a policy of insisting upon parties to complaints making written requests, supported by reasons, before she will enter into dialogue with a legal practitioner representing a party". Her conclusion in the draft report was that the applicant acted unreasonably in requiring the presiding officers of Parliament to seek her authorisation before Parliament could be represented by the Director. Clearly Parliament could not reasonably be expected to act for itself. A body such as Parliament had, in the respondent's view, the right to be represented by a legal practitioner, in this case the Director, without being forced to seek the applicant's approval. For the applicant to attempt to force Parliament to do so was, in the respondent's opinion, unreasonable within the meaning of the Ombudsman Act, s28(1)(b).

64 At the end of the draft report, the respondent proposed to recommend to the applicant that she conduct correspondence with legal practitioners representing parties wherever practicable, whilst retaining the right to address correspondence to complainants or respondents in person when necessary and that the applicant, as a matter of course, recognise the right of a party to a complaint to be represented by a legal practitioner, without requiring that party to seek her prior approval or to provide reasons for being so represented.

65 The applicant applied to the Court for the following orders:

"1 A declaration that the Respondent did not and does not have jurisdiction or power to conduct an investigation into any of the matters of complaint concerning the Applicant sought to be raised by the Director of Public Prosecutions ('the DPP') in his letters to the Respondent dated respectively:

2 A declaration that the Respondent did not and does not have jurisdiction to complete or present any report into any of the matters of complaint concerning the Applicant sought to be raised by the DPP in his letters to the Respondent dated respectively:

3 A declaration that the report of the Respondent dated June 2001 on the matters of complaint concerning the Applicant sought to be raised by the DPP in his letters to the Respondent dated respectively:-

is not authorised by the Ombudsman Act 1978;

4 A declaration that, the draft report of the Respondent on the matters of complaint concerning the Applicant sought to be raided by the DPP in his letter to the Respondent dated 19th September 2000 is not authorised by the Ombudsman Act 1978."

The jurisdiction of the Court in the case of a completed investigation

66 The limited jurisdiction of this Court, upon which the applicant's case depends, is to be found in the Ombudsman Act, s32:

"32 - (1) Where, in the course of, or in contemplation of, an investigation, the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or any interested party may apply to the Supreme Court for a determination of that question, and, on such an application being made, the Court may make such order as it considers appropriate.

(2) The following persons shall, in relation to any investigation, be regarded as the interested parties -

(a) the public authority by which the action the subject of the investigation is alleged to have been taken;

(c) the responsible Minister in relation to that authority;

(d) the person who is alleged to have taken the action the subject of the investigation; and

(e) if the investigation arises or is sought upon a complaint, the complainant."

67 By virtue of subs(1), where, in the course of, or in contemplation of, an investigation, the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, an interested party, such as the applicant in this case, may apply to the Court for a determination of that question. There is no doubt that in the course of both of the Ombudsman's investigations, the applicant challenged the Ombudsman's jurisdiction to conduct them. Therefore it is clear that the necessary state of affairs arose for the invoking of the Court's jurisdiction and the making of the present application.

68 However, it was submitted by the respondent's counsel that the temporal restriction in s32(1) requires that an application may only be made to the Court at a time when an investigation by the Ombudsman is being contemplated or during the course of such an investigation, and that if the Ombudsman has completed the investigation, which was certainly the case here so far as concerned the investigation into the applicant's handling of the claim by A's parents, an application to the Court under s32(1) can no longer be made. Counsel extended his submission to also embrace the application so far as it challenges the respondent's investigation into the applicant's handling of the claim by B, arguing that the investigation itself had been concluded and all that was left to be done by the respondent was finalisation and communication of her report.

69 I reject the submission. I interpret the subsection literally. All it requires is that the question whether the Ombudsman had jurisdiction to conduct the investigation arose in the course of, or in contemplation of, the investigation. The circumstances of this case fall within its requirements and the application was properly made and the Court has jurisdiction. My view is supported by the Minister's Second Reading Speech in 1978 when introducing the draft legislation to the House of Assembly, in which he said that "the Supreme Court can only advise on actual cases where jurisdiction is disputed, and cannot advise on hypothetical situations". No time limit is imposed by s32 for the making of the application itself. The section is to be contrasted with s19, which imposes a time limit for bringing complaints.

The jurisdiction of the Ombudsman to investigate administrative action

70 Under the Ombudsman Act, s12(1), "subject to this Act, the Ombudsman may investigate any administrative action taken by or on behalf of a public authority". By definition, a public authority included the applicant. See ss3(1), 4(1) and Sch1, Item6. Under subs(2), a reference in the Act to taking action includes (inter alia) a reference to a failure or refusal to perform, or delay in performing an act, and "administrative action means action taken in a matter of administration whether there was legal authority for that action or not". By subs(4), "the power of the Ombudsman to investigate an administrative action includes power to investigate all the circumstances surrounding that action".

71 The conduct of investigations is governed by PtIII, Div3. In particular, s23(5) and (6) require the Ombudsman not to make a report on an investigation that contains adverse or derogatory comments on a person or public authority unless an opportunity has first been given to the person or authority to appear before the Ombudsman and make representations in relation to the matter under investigation.

72 Part III, Div4 governs procedures to be followed on completion of an investigation. The provisions of s28(1), (2) and (3) are particularly relevant:

"28 - (1) Where, as a result of an investigation carried out under this Act, other than an investigation carried out pursuant to a reference made under section 15 or section 16, the Ombudsman is of the opinion that the 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 a 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 basis 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

he shall take such action specified in subsection (2) as in the circumstances of the case he thinks fit.

(2) Where, in the 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 public authority for further consideration;

(b) that action can 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 shall report his opinion, and the reasons on which it is based, to the principal officer of the appropriate public authority, and may make such recommendation with respect to that report as he thinks fit.

(3) Where the Ombudsman makes a report or recommendation to the principal officer of a public authority under subsection (2), he shall send a copy of the report or recommendation to the responsible Minister."

73 The primary argument of the applicant concerned the meaning of "administrative action" in s12(1). Her counsel submitted that the mischief at which the Act is aimed is "maladministration" and that none of the complaints made to the Ombudsman by the Director involved "maladministration" nor, it therefore followed, "administrative action" within the Act. As I will later discuss, but point out now, the argument confuses jurisdiction to investigate with the possible outcome of an investigation the Ombudsman has jurisdiction to carry out.

74 The word "maladministration" is not used in the Act at all. However, the applicant's counsel relied on passages in the Second Reading Speech of the responsible Minister when introducing the legislation in about 1978, together with the Clause Notes. (The Bill was then entitled the Administrative Complaints Bill but was subsequently enacted as the Ombudsman Act.) The Bill substantially copied similar legislation already enacted in the Commonwealth, the other States and the Northern Territory. The Minister said that the function of the Ombudsman would be "to investigate complaints about administrative actions of officials", and that the Ombudsman would "only be concerned with what may be termed mal-administration". He stressed that the Ombudsman would not be empowered to substitute his own decision for the decision concerned, but would be "able to record that a decision is wrong and has been arrived at by an incorrect or unfair procedure". Although the Minister used the word "mal-administration" twice more when speaking to the Bill, he pointed out that the Bill provided that the Ombudsman would be empowered to "investigate any administrative act by a department or authority". I stress that the Minister referred to the Ombudsman's jurisdiction in that way and did not express it as a power to investigate maladministration. Relevantly, the Minister emphasised, with obvious reference to s12, that "the key words are "administrative act by a Government department or authority" and that "acts of a policy or a judicial nature are therefore not included within the jurisdiction" of the Ombudsman.

75 The Clause Notes to the Bill pointed out that "administrative action" was defined in s12 as meaning an action taken in a "matter of administration", but the latter expression was not defined. It was emphasised that "no satisfactory definition has yet been formulated" and that "experience in the States and the Commonwealth is that it is better not to attempt a definition which might unduly limit the flexibility of the" Ombudsman.

76 Under the Acts Interpretation Act 1931, s8B(1), the Court may in the interpretation of a provision in an Act, give consideration to extrinsic material, such as a Second Reading Speech and Clause Notes, if they are capable of assisting in the interpretation of a provision which is ambiguous or obscure, to provide an interpretation of it. I can see no ambiguity or obscurity in s12(1)(2) or (4), but in any event there is nothing in what was said by the Minister or written in the Clause Notes to justify confining the matters the Ombudsman may investigate ("any administrative action" or "action taken in a matter of administration" - see s12(1) and (2)) to "maladministration". So far as the power given by s12 to investigate is concerned, the power is extremely broad. It is not restricted to investigating only bad, or faulty, or inefficient, or improper, administrative actions, or those which might in some other way be correctly described or categorised as maladministration or in some other nounal or adjectival form of similar meaning. The words of s12(1) are for present purposes, explicit and clear. It is any administrative action taken by or on behalf of a defined public authority that may be investigated.

77 I will briefly review some Australian authorities concerning the jurisdiction of an Ombudsman to investigate administrative action. In Booth v Dillon (No 1) [1976] VicRp 23; [1976] VR 291, Lush J considered the Ombudsman Act 1973 (Vic), which used similar expressions to those appearing in the Act of this State. At 295 his Honour said that no assistance was available from authority concerning matters that might be investigated. He avoided defining "relating to a matter of administration" in the Victorian Act and said that the limits of the phrase would be worked out in a course of decisions relating to different sets of facts. The same legislation was considered by the Full Court in Glenister v Dillon [1976] VicRp 57; [1976] VR 550. At 558 Gillard J said that he was "of opinion that the expression 'a matter of administration' means any subject that should arise in the course of administration, or putting it another way, in the performance of the executive function of government" (as opposed to the judicial or legislative functions of government). At 559 his Honour said that "a matter of administration" is not limited to management or organisation of a department, or to a system of working in the same.

78 In Glenister v Dillon (No 2) [1977] VicRp 17; [1977] VR 151 at 153, Nelson J, summarised his views as follows:

"(1) subject to the specific exclusions in the section, the Ombudsman may investigate any action taken in a government department which relates to a matter which arises in the performance of the executive function of government, and

(2) that the action relates to such a matter if it is taken in the discharge of that function of government or if it can properly be said to be so incidental to the discharge of such a function that it forms a part of it."

79 In Booth v Dillon (No 3) [1977] VicRp 16; [1977] VR 143 at 144, Nelson J agreed with Gillard and Menhennitt JJ in Glenister v Dillon, that the Act was intended to apply to "acts which may properly be described as falling within the performance of the executive function of government" and not to those falling "within the performance of the legislative and judicial functions of government". Concerning the meaning of "a matter of administration" in the definition of "administrative action", his Honour agreed with Gillard J in Glenister v Dillon at 558, stating "that the expression means any subject that should arise in the performance of the executive function of government". At 145 Nelson J pointed to the expression "any action" in the Victorian definition (cf "any administrative action" in s12(1)) and said that "it is in perfectly general terms". He added:

"If the action must relate to a matter arising in the performance of the executive function of government, then it appears to me that the initial inquiry must be directed not so much to the nature of the action itself but rather to the question of whether it relates to a matter arising in the performance of such execution function."

80 Similar legislative provisions were considered by the Court of Appeal in Botany Council v The Ombudsman (1995) 37 NSWLR 357. Kirby P, with whom the other members of the court agreed, said at 367 - 368:

"Those powers, as the Ombudsman Act reveals, are, as they ought to be, extremely wide. They are not powers which this Court should read down. They are beneficial provisions designed in the public interest for the important object of improving public administration and increasing its accountability, including to ordinary citizens such as Messrs Perry and Foley. Sadly, the experience of the past (and not only the past) has been of the occasional misuse and even oppressive use of administrative power. One modern remedy against such wrongs has been the creation by parliaments in all jurisdictions of Australia of the office of Ombudsman. Whilst it may be expected that the Ombudsman will conform to the statute establishing his office, a large power is intended. The words of the Ombudsman Act should be an [sic] given ample meaning."

81 There is no reason why I should not apply those general statements of principle concerning the jurisdiction of Ombudsmen to investigate administrative actions. Therefore, I will apply them. I also point out that not only does the Ombudsman have jurisdiction to investigate any administrative action taken by or on behalf of a public authority (s12(1)), but also to investigate all the circumstances surrounding that action (s12(4)).

82 All of the 12 complaints made by the Director concerned administrative action taken by the applicant, that is to say action (in the cases of complaints 2, 9 and 11, failures to act - see s12(2)(a)) taken by her in a matter of administration, or putting it another way, in the performance of the executive function of government. It follows that as the Court only has power under s32(1) to determine whether the Ombudsman had jurisdiction to conduct an investigation into the matters complained of by the Director, the application to the Court should be dismissed in its entirety.

83 Finally, I return to the issue raised by the applicant's counsel with reference to maladministration. In the Clause Notes to the Bill leading to the Act, it was stated with respect to cl 28(1), now s28(1):

"This sub-clause lays down the procedure to be followed on completion of the investigation. Paragraphs (a) - (g) set out the circumstances of mal-administration. It attempts to present a complete catalogue of the cases in which an administrative action would be considered defective."

84 In that passage, the Clause Notes did not refer to the Ombudsman's jurisdiction to conduct an investigation, or to the meaning of administrative action in s12. They referred to the power to take such action as is specified in s28(2) where, as a result of an investigation the Ombudsman had jurisdiction to carry out, the Ombudsman formed the opinion that the action to which the investigation related fell within one or more of the categories specified in pars(a) to (g) of s28(1).

85 The Ombudsman made no finding critical of the applicant with respect to complaints 3, 4, 7 and 8. The Ombudsman did make findings critical of the applicant with respect to the other eight complaints. Her counsel sought to attack them in the guise of jurisdictional issues. However, under s32(1), the Court only has power to determine whether the Ombudsman had jurisdiction to conduct the investigation into each of the matters complained of by the Director. The Court has no power under s32(1) to determine whether the opinions reached by the Ombudsman as a result of the investigation correctly fell within any of the paragraphs of s28(1). Nor does the applicant have the right to appeal to the Court because she is aggrieved by the opinions of the Ombudsman that are critical of her.

86 The provisions of the Act do not bear comparison with the legislation dealt with by the Court of Appeal in R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford Metropolitan City Council [1979] 1 QB 287, to which counsel referred in argument. That case concerned the Local Government Act 1974 (UK), s26, which applied to local authorities and provided that "where a written complaint is made by or on behalf of a member of the public who claims to have sustained injustice in consequence of maladministration in connection with action taken by or on behalf of an authority ... being action taken in the exercise of administrative functions of that authority", the equivalent of an Ombudsman might investigate that complaint. It is apparent from that provision that an investigation could only be made into a complaint which claimed injustice arising out of maladministration. There is no similar provision in the Act of this State, and certainly not in s12.

87 For the reasons I have expressed, the application will be dismissed.

Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24

At a glance

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Judgment (135 paragraphs)

Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24 (9 May 2002)

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Cases Cited (2)