8Investigations

#### 8 Investigations Ombudsman must inform of investigation (1) The Ombudsman shall, before commencing an investigation under this Act of action taken by a Department or by a prescribed authority, inform the principal officer of the Department or of the authority that the action is to be investigated. (1A) The Ombudsman may from time to time make with the principal officer of a Department or of a prescribed authority an arrangement with respect to the manner in which, and the period within which, the Ombudsman is to inform that principal officer that he or she proposes to investigate action taken by the Department or authority, being action included in a class or classes of actions specified in the arrangement. Investigations to be in private (2) An investigation under this Act shall be conducted in private and, subject to this Act, in such manner as the Ombudsman thinks fit. Disclosure of information (2A) Subsections (2B), (2C), (2D) and (2E) apply if: (a) either: (i) for the purposes of an investigation under this Act (whether or not the investigation has been completed), the Ombudsman requests a person to give information (including an answer to a question) to the Ombudsman or to produce a document or other record to the Ombudsman; or (ii) a person reasonably believes that information or a document or other record is relevant to an investigation under this Act (whether or not the investigation has been completed); and (b) any of the following apply: (i) the person obtained the information, document or record in the course of the person’s duties as the principal officer of a Department or prescribed authority, and the person is still the principal officer of the Department or prescribed authority; (ii) the person obtained the information, document or record in the course of the person’s duties as the principal officer of a Department or prescribed authority, the person is no longer the principal officer of the Department or prescribed authority, and the principal officer of the Department or prescribed authority has authorised the person to give the information to the Ombudsman or to produce the document or other record to the Ombudsman; (iii) the person obtained the information, document or record in the course of the person’s duties as an officer (other than as the principal officer) of a Department or prescribed authority, and the principal officer of the Department or prescribed authority has authorised the officer to give the information to the Ombudsman or to produce the document or other record to the Ombudsman; (iv) the person obtained the information, document or record lawfully but not in the course of the person’s duties as an officer (including as the principal officer) of a Department or prescribed authority. (2B) If the person: (a) gives the information to the Ombudsman or produces the document or record to the Ombudsman; and (b) by doing so: (i) contravenes any other enactment; or (ii) might tend to incriminate the person or make the person liable to a penalty; or (iii) discloses a legal advice given to a Minister, a Department or a prescribed authority; or (iv) discloses a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege; or (v) otherwise acts contrary to the public interest; the information or the production of the document or record is not admissible in evidence against the person in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act. (2C) The person is not liable to any penalty under the provisions of any other enactment by reason of his or her giving the information to the Ombudsman or producing the document or record to the Ombudsman. (2D) For the purposes of the Privacy Act 1988, the giving of the information to the Ombudsman or the production of the document or record to the Ombudsman is taken to be authorised by this Act. (2E) Subsection (2B) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to the information, document or record. Ombudsman may obtain information (3) Subject to this Act, the Ombudsman may, for the purposes of this Act, obtain information from such persons, and make such inquiries, as he or she thinks fit. Rights to appear (4) Subject to subsection (5), it is not necessary for the complainant or any other person to be afforded an opportunity to appear before the Ombudsman or any other person in connexion with an investigation by the Ombudsman under this Act. (5) The Ombudsman shall not make a report in respect of an investigation under this Act in which he or she sets out opinions that are, either expressly or impliedly, critical of a Department, prescribed authority or person unless, before completing the investigation, he or she has: (a) if the opinions relate to a Department or prescribed authority—afforded the principal officer of the Department or authority and the officer principally concerned in the action to which the investigation relates opportunities to appear before him or her, or before an authorized person, and to make such submissions, either orally or in writing, in relation to that action as they think fit; and (b) if the opinions relate to a person—afforded that person an opportunity to appear before him or her, or before an authorized person, and to make such submissions, either orally or in writing, in relation to the action to which the investigation relates as he or she thinks fit. (6) Where the Ombudsman affords the principal officer of a Department or of a prescribed authority an opportunity to appear before him or her, or before an authorized person, under subsection (5), the principal officer may appear before the Ombudsman or before the authorized person in person or a person authorized by the principal officer may appear before the Ombudsman or before the authorized person on behalf of the principal officer. (7) Where the Ombudsman affords a person other than the principal officer of a Department or of a prescribed authority an opportunity to appear before him or her, or before an authorized person, under subsection (5), the person may, with the approval of the Ombudsman or of the authorized person, as the case may be, be represented by another person. (7A) Where, in relation to an investigation under this Act, the Ombudsman proposes to afford a person an opportunity to appear before him or her or before an authorized person and to make submissions under subsection (5), or proposes to make a requirement of a person under section 9: (a) if a complaint was made orally with respect to the action and the complaint has not been reduced to writing—the complaint shall be reduced to writing accordingly; and (b) the Ombudsman shall, if he or she has not previously informed the responsible Minister that the action is being investigated, inform that Minister accordingly. Ombudsman may discuss investigation with Ministers (8) The Ombudsman may, either before or after the completion of an investigation under this Act, discuss any matter relevant to the investigation with: (a) the responsible Minister; or (b) any other Minister concerned with the matter. (9) On the request of the responsible Minister, the Ombudsman shall consult that Minister before he or she forms a final opinion on any of the matters referred to in subsection 15(1) or (2) that are relevant to the action under investigation. Breaches of duty etc. (10) Where the Ombudsman forms the opinion, either before or after completing an investigation under this Act, that there is evidence that a person, being an officer of a Department or of a prescribed authority, has been guilty of a breach of duty or of misconduct and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so, the Ombudsman shall bring the evidence to the notice of: (a) if the person is the Secretary of the Department—the Minister administering the Department; or (b) if the person is an officer of a Department but not the Secretary of that Department—the Secretary of that Department; or (ba) if the person is the Secretary of a Parliamentary Department—the Presiding Officer or Presiding Officers (within the meaning of the Parliamentary Service Act 1999) in relation to the Parliamentary Department; or (bb) if the person is an officer of a Parliamentary Department but not the Secretary of that Parliamentary Department—the Secretary of that Parliamentary Department; or (c) if the person is the principal officer of a prescribed authority (other than a Parliamentary Department)—the responsible Minister in respect of the action under investigation; or (d) if the person is an officer of a prescribed authority (other than a Parliamentary Department)but not the principal officer of that authority—the principal officer of that authority. (10A) Without limiting subsection (10), if the Ombudsman forms the opinion, either before or after completing an investigation under this Act, that there is evidence that an Agency Head may have breached the APS Code of Conduct, the Ombudsman must: (a) unless the Agency Head is the Australian Public Service Commissioner—bring the evidence to the notice of the Australian Public Service Commissioner; or (b) if the Agency Head is the Australian Public Service Commissioner—bring the evidence to the notice of the Merit Protection Commissioner. (10B) Without limiting subsection (10), if the Ombudsman forms the opinion, either before or after completing an investigation under this Act, that there is evidence that the Secretary of a Parliamentary Department may have breached the Code of Conduct (within the meaning of the Parliamentary Service Act 1999), the Ombudsman must bring the evidence to the notice of the Parliamentary Service Commissioner. (10C) Without limiting subsection (10), if the Ombudsman forms the opinion, either before or after completing an investigation under this Act, that there is evidence that the Parliamentary Service Commissioner may have breached the Code of Conduct (within the meaning of the Parliamentary Service Act 1999), the Ombudsman must bring the evidence to the notice of the Parliamentary Service Merit Protection Commissioner. (11) If: (a) a person is, or is an employee of, a Commonwealth service provider of a Department or prescribed authority under a contract; and (b) in the opinion of the Ombudsman, there is evidence that the person has engaged in conduct that: (i) would, if the person were an officer of the Department or prescribed authority, amount to a breach of duty or to misconduct; or (ii) should be brought to the attention of the principal officer of the Department or prescribed authority; and (c) in the opinion of the Ombudsman, the evidence is, in all the circumstances, of sufficient force to justify the Ombudsman doing so; the Ombudsman must bring the evidence to the notice of the principal officer of the Department or prescribed authority. Arrangements for having police officers assist Ombudsman in relation to investigation (12) Whenever it becomes necessary or desirable for the Ombudsman to use persons with police training in connection with his or her investigation of a complaint about an AFP conduct issue or AFP practices issue, the Ombudsman may, and must in so far as it is practicable to do so, use, in connection with that investigation: (a) an AFP appointee who is made available to him or her by the AFP Commissioner for the purposes of the investigation; or (b) a member of the police force of a State whom the police force of the State agrees to make available to the Ombudsman, for the purposes of the investigation, under arrangements made by the AFP Commissioner.