Div 1Reviews by Ombudsman

Division 1—Reviews by Ombudsman 39—External review (1) In this section— interested person, in relation to a review, means a person who should, under Division 2 of Part 3, be consulted in relation to an application for access to a document the subject of the review; relevant review authority, in relation to a determination, means the Ombudsman. (2) A person— (a) who is aggrieved by a determination of an agency following an internal review; or (b) who is aggrieved by a determination that is not liable to internal review, may apply to the relevant review authority for a review of the determination. (3) Subject to subsection (4), an application under this section must be made— (a) where there has been a review of the determination by the agency—within 30 days after notice of the decision on review of the determination is given to the applicant; or (b) in any other case—within 30 days after the date of the determination. (4) The relevant review authority may, in its discretion, extend the time for making an application under this section. (5) In conducting a review under this section, the relevant review authority— (a) may carry out an investigation into the subject matter of the application (and for the purposes of such an investigation may exercise the same investigative powers as are conferred on the Ombudsman by the Ombudsman Act 1972 in relation to an investigation duly initiated under that Act, including the powers of a commission as defined in the Royal Commissions Act 1917); and (b) may, if it appears to the relevant review authority that the agency has failed to properly sort or compile documents relevant to the review or to undertake consultations relevant to the review that should have been undertaken by the agency— (i) require the agency to sort or compile the documents or undertake the consultations; or (ii) require officers of the agency to attend at a time and place specified by the relevant review authority for the purpose of sorting and compiling the documents or undertaking the consultations; and (c) may— (i) try to effect a settlement between the participants to a review at any time during the review; and (ii) at the request of the agency, suspend proceedings under this section at any time to allow an opportunity for a settlement to be negotiated. (6) Section 21 of the Ombudsman Act 1972 does not apply in relation to a review under this section. (7) The agency and the applicant must cooperate in the process proposed by the relevant review authority for the purposes of the conduct of a review under this section (including any attempt of the relevant review authority to effect a settlement between the participants), and must do all such things as are reasonably required to expedite the process. (8) The relevant review authority may dismiss an application if the relevant review authority considers that the applicant has failed to comply with subsection (7). (9) If, in determining an application for a review under this section— (a) the relevant review authority is advised that the determination of the agency was made on grounds of the public interest; and (b) the Minister administering this Act makes known to the relevant review authority the Minister's assessment of what the public interest requires in the circumstances of the case subject to the review, the relevant review authority must, in determining the application, uphold that assessment unless satisfied that there are cogent reasons for not doing so. (10) A relevant review authority must not make a determination to the effect that access is to be given to a document to which Division 2 of Part 3 applies unless the relevant review authority has taken steps as are reasonably practicable to obtain the views of any interested person as to whether or not the document is an exempt document under a provision of Part 2 of Schedule 1. (11) On an application under this section, the relevant review authority may (based on the circumstances existing at the time of the review) confirm, vary or reverse the determination the subject of the review. (12) If, in conducting a review under this section, the relevant review authority is satisfied that a document is an exempt document, the relevant review authority does not have power to make a determination to the effect that access is to be given to the document (but may, if it thinks fit, offer, together with its reasons for its determination, reasons why the agency might give access to the document despite its exempt status). (13) On making a determination on a review under this section, the relevant review authority must notify each of the following persons of the determination and the reasons for the determination: (a) the applicant; (b) the agency; (c) if— (i) the determination is to the effect that access is to be given to a document; and (ii) the relevant review authority— (A) is aware that the views of an interested person are that the document is an exempt document under a provision of Part 2 of Schedule 1; or (B) after having taken reasonable steps to obtain the views of an interested person, has been unable to obtain the views of the person, the interested person. (14) If the relevant review authority considers it to be in the public interest or the interests of an agency to do so, the relevant review authority may publish, in such manner as the relevant review authority thinks fit, the reasons for a determination made on a review under this section. (15) A relevant review authority should avoid disclosing in its reasons for a determination any matter that the agency claims is exempt matter (whether or not the relevant review authority agrees with that claim). (16) In publishing reasons for a determination, a relevant review authority may comment on any unreasonable, frivolous or vexatious conduct by the applicant or the agency. (17) If, after conducting a review under this section, a relevant review authority is of the opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it doing so, the relevant review authority may bring the evidence to the notice of— (a) if the person is the principal officer of a State Government agency—the responsible Minister; or (b) if the person is the principal officer of an agency other than a State Government agency—the agency; or (c) if the person is an officer of an agency but not the principal officer of the agency—the principal officer of that agency. Division 2—Reviews by SACAT 40—Reviews by SACAT (1) An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of SACAT, apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by SACAT. (1a) However, the review may only be as to a question of law and that question must be referred to a Presidential member of the Tribunal under section 26 of the South Australian Civil and Administrative Tribunal Act 2013. (2) A person (other than an agency)— (a) who is aggrieved by a determination of an agency following an internal review; or (b) who is aggrieved by a determination that is not subject to internal review; or (c) who is aggrieved by a determination made on a review under Division 1, may apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by SACAT. (3) Proceedings under this section must be commenced by an agency or person within 30 days after notice of the determination to which the proceedings relate is given to the agency or person or, in the case of a person who was not given notice of the determination, within 30 days after the determination. (4) Where an application for review is made under Division 1, a review by SACAT under this Division cannot be commenced until that application is decided and the commencement of a review by SACAT bars any right to apply for a review under Division 1. (5) The following are parties to proceedings under this section: (a) the agency; (b) in the case of a review by SACAT of a determination of an agency following an internal review or a determination made on a review under Division 1—the applicant for the internal review or review under Division 1; (c) in the case of a review by SACAT of a determination that has not been the subject of an internal review or a review under Division 1—the applicant for the determination. (6) The Ombudsman cannot be a party to proceedings under this section. (7) If, in proceedings under this section— (a) SACAT is advised that the determination of the agency was made on grounds of the public interest; and (b) the Minister administering this Act makes known to SACAT the Minister's assessment of what the public interest requires in the circumstances of the case subject to the review, SACAT must, in determining the review, uphold that assessment unless satisfied that there are cogent reasons for not doing so. (8) In proceedings under this section— (a) in the case of proceedings commenced by an agency—SACAT must order that the agency pay the other party's reasonable costs; or (b) in any other case—SACAT must not make an order requiring a party to pay any costs of an agency unless SACAT is satisfied that the party acted unreasonably, frivolously or vexatiously in the bringing or conduct of the proceedings. 41—Consideration of restricted documents (1) In any proceedings under this Division in which it is claimed that a document is a restricted document, SACAT must, on the application of— (a) the agency concerned; or (b) if the agency concerned is a State Government agency—the Minister administering this Act, receive evidence and hear argument in the absence of the public, the other party to the review and, where in the opinion of SACAT it is necessary to do so in order to prevent the disclosure of any exempt matter, the party's representative. (2) If SACAT is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (3) If the agency concerned is a State Government agency, the Minister administering this Act is a party to the proceedings, and SACAT must not determine the review unless SACAT has given the Minister a reasonable opportunity to appear and be heard in relation to the matter and has given due weight to any submissions made by or on behalf of the Minister. 42—Disciplinary actions If, at the completion of any proceedings under this Division, SACAT is of the opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it doing so, SACAT may bring the evidence to the notice of— (a) if the person is the principal officer of a State Government agency—the responsible Minister; or (b) if the person is the principal officer of an agency other than a State Government agency—the agency; or (c) if the person is an officer of an agency but not the principal officer of the agency—the principal officer of that agency.