12Matters subject to investigation

12 Matters subject to investigation

(1)  [Section 12 Subsection (1) amended by No. 67 of 2009, s. 122, Applied:01 Oct 2010] Subject to this Act, the Ombudsman may investigate any administrative action taken by or on behalf of a public authority or any matter that the Ombudsman has power to deal with under this Act that is referred to the Ombudsman by the Integrity Commission.

(1A)  [Section 12 Subsection (1A) inserted by No. 33 of 2005, s. 7, Applied:11 Jul 2005] For the purpose of subsection (1) , administrative action is taken on behalf of a public authority if it is taken in the exercise of the powers or in the performance of the functions of a public authority by a person under contract with, or otherwise acting under instructions from –

(a) the public authority; or

(b) the Crown.

(1B)  [Section 12 Subsection (1B) inserted by No. 33 of 2005, s. 7, Applied:11 Jul 2005] Subsection (1A) does not apply to administrative action taken under a contract made before the commencement of the Ombudsman Amendment Act 2005 .

(2)  A reference in this Act to taking action includes a reference to –

(a) a failure or refusal to perform, or a delay in performing, an act;

(b) the formulation of a proposal or an intention; and

(c) the making of a recommendation (including a recommendation to a Minister) –

and, in this Act, administrative action means action taken in a matter of administration whether there was legal authority for that action or not.

(3)  The Ombudsman shall not investigate any action of a kind specified in Schedule 2 .

(4)  The power of the Ombudsman to investigate an administrative action includes power to investigate all the circumstances surrounding that action.

(5)  The Ombudsman is not, in the exercise of his powers under this Act, entitled to question the merits of –