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ATTACHMENT C

OMBUDSMAN BILL 2008
SERIAL NO.       

LEGISLATIVE ASSEMBLY OF THE 
NORTHERN TERRITORY

CHIEF MINISTER

EXPLANATORY STATEMENT

GENERAL OUTLINE 

The Ombudsman Bill establishes a transparent, modern, comprehensive scheme for the future operation of the Ombudsman in the Northern Territory; it establishes the office of the Ombudsman and defines the Ombudsman’s jurisdiction in relation to public authorities (including agencies, the police force, local government councils and other entities that are constituted or established for a public purpose in the Northern Territory); and the types of administrative actions which can be the subject of a complaint and how the Ombudsman may make inquiries or investigate the matter; it also establishes the Ombudsman’s jurisdiction in relation to police conduct and defines how complaints relating to police conduct are to be dealt with; it creates various offences for persons or bodies corporate who do not comply with various notices and directions; and it repeals the Ombudsman (Northern Territory) Act.

NOTES ON CLAUSES

PART 1 – PRELIMINARY	
Clause 1	Short title	
Clause 1	Cites the short title as the Ombudsman Act 2008.	
Clause 2	Commencement	
Clause 1	The Act commences on the date fixed by the Administrator in the Gazette.	
Clause 3	Objects	
(a)	establishes that complaints are to be dealt with in a timely manner, efficiently, effectively, independently, impartially and fairly; and
(b)	seeks to improve the quality of decision-making and administrative practices in public authorities.	
PART 2 - INTERPRETATION - Division 1 – General	
Clause 4	Definitions	
The number of definitions included in this clause has increased substantially in comparison with the current Ombudsman (Northern Territory) Act to provide greater clarity. 	
·	acting in an official capacityIn relation to a person acting in an official capacity, means the carrying out of duties of performing functions under the Act and includes administrative functions under the Act.	
·	administrative actionRefers to clause 6; and includes any action about a matter of administration, including –
(a)	a decision or an act;
(b)	a failure to make a decision or do an act;
(c)	the formulation of a proposal or intention;
(d)	the making of a recommendation, including a recommendation made to the Administrator or a Minister; and	
(e)	a decision or act taken in consequence of the making of a recommendation.	
ê	AgencyHas the same meaning as in the section 3(1) of the Public Sector Employment and Management Act, that is, ‘a unit of government administration, or office or statutory corporation, nominated in an Administrative Arrangements Order as an Agency for the purposes of this Act’.	
·	CommissionerCommissioner of Police	
·	complainantThe person making the complaint, and includes a third party if that party is aggrieved by the action.	
·	complaintA complaint (or part of a complaint) about administrative actions of public authorities or conduct of a police officer.	
·	complaints entityA statutory entity with responsibility for investigation and review of matters that may include administrative actions of public authorities or police conduct, for example: The Information Commissioner and Health and Community Services Complaints Commissioner.	
·	conductHas the meaning set out in clause 7. 

Conduct includes any decision or act, or a failure to make any decision or do any act, by a police officer for, in relation to the exercise or performance of a power or function of a police officer and includes conduct in the capacity of a public official.

The off duty conduct of a police officer is not within the Ombudsman’s jurisdiction.	
·	councilA council constituted under the Local Government Act	
·	disciplinary actionIn reference to a breach of discipline by police, means action taken under section 84D of the Police Administration Act, and may include counselling, caution, good behaviour, fines, reducing rank or salary, transfer, suspension or dismissal.	
·	disciplinary proceduresRefers to procedures in Part IV of the Police Administration Act.	
·	Director of Public Prosecutions exempted matterBased on the current Act, and includes matters related to a legal proceeding; the granting of prosecutorial immunity; an extradition; the recovery of penalties or enforcement of forfeitures; matters involving prosecution guidelines; the limiting of officials’ powers specified in s23(4) of the Director of Public Prosecutions Act; or the investigation of offences.	
·	failure Includes refusal.	
·	harmRefers to clause 125 and means to cause to a person: injury, loss, damage; to intimidate or harass; or to discriminate, disadvantage or treat badly in relation to a person’s employment or professional standing.	
ê	investigation Includes an investigation:
(a)	about administrative action, carried out by the Ombudsman under Part 6, Division 4;
(b)	about police conduct, carried out by the Police Standards  Command under Part 7, Division 4, Subdivision 2; or
(c)	about police conduct, carried out by the Ombudsman under Part 7, Division 5, Subdivision 2.	
·	notified police complaintIf a complaint is made to the Police, the Ombudsman must be notified of the complaint in accordance with clause 65(2).	
·	obstructIncludes hinder and resist.	
·	officerIn reference to a public authority includes the principal officer, a member of the authority and an employee of the authority	
·	officerIn reference to the Ombudsman’s Office, means an employee of the Ombudsman’s Office.	
·	OmbudsmanThe person holding the office of   Ombudsman established by clause 9.	
·	Ombudsman’s OfficeThe Agency specified in Schedule 1 of the Public Sector Employment and Management Act.	
·	parliamentary referenceA matter referred to the Ombudsman by the Legislative Assembly for investigation pursuant to clause 17.	
·	partyParty to a complaint means:
(a)	the complainant or the principal officer (such as the CEO of an agency or the Commissioner of Police) in relation to an administrative action of a public authority; or
(b)	the complainant, the Commissioner of Police or the police officer whose conduct is complained about in relation to police conduct. 	
·	Police Civil Employment UnitThe Agency specified in Schedule 1 of the Public Sector Employment and Management Act.	
·	police complaintMeans a complaint about Police conduct.	
·	police complaints agreementAn agreement between the Ombudsman and Commissioner of Police about how complaints against Police will be dealt with (refer clause 150).

The agreement must be tabled in the Assembly, published in the Police Gazette and the Ombudsman’s annual report and be made available for public inspection.	
·	police complaints resolution processMeans the process of resolving police complaints subject to the process specified in a police complaints agreement.	
·	Police ForceThe Police Force of the Northern Territory established by section 5 of the Police Administration Act.	
·	Police MinisterThe Minister responsible for the Police Administration Act.	
·	Police Standards CommandThe Ethical and Professional standards Command of the Police Force.	
·	Police Standards Command memberA police officer assigned to the Police Standards Command.	
·	Police Standards Command reportA report by the Police Standards Command in relation to an investigation of a police complaint (refer clause 92(1) or 95).	
·	preliminary inquiriesIn relation to an administrative action, means preliminary inquiries by the Ombudsman to decide whether he/she is authorised to investigate an administrative action of a public authority (refer clause 28).	
·	presiding memberIn reference to a local government council, means the mayor, president, chairman or person, by whatever title, presiding over the council, and includes the deputy to the presiding member.	
·	principal officerIn reference to a public authority, means:
(a)	for an Agency, the Chief Executive Officer within the meaning of the Public Sector Employment and Management Act;
(b)	for the Police Force, the Commissioner;
(c)	for a local government council, the Chief Executive Officer, unless the action being complained about was taken by the Chief Executive Officer, in which case the presiding member of the council;
(d)	for another entity constituted or established by or under a law of the Territory, the chairperson or presiding member of the entity or a person who constitutes an entity.  Examples of such entities are Charles Darwin University;
(e)	for an entity prescribed by the Regulations to be a public authority, the person prescribed by the Regulations. No regulations are being made at this time.	
·	prisonerA person who is in custody, and includes a person on remand.	
·	public authorityMeans an Agency, the Police Force, the Power and Water Corporation, a local government council, another entity constituted or established for a public purpose by a law of the Territory (for example the Charles Darwin University) and an entity prescribed by the Regulations (refer clause 5).	
·	public officialA person appointed or authorised under an Act or regulations to perform inspection, investigation or other enforcement functions for the Territory, an Agency or another public authority. For example, actions of police officers such as fisheries inspections, which they are required to perform but which are not under the Police Administration Act.	
·	relevant officialIn relation to a police complaint, the meaning set out under Part 7, Division 3, clause 68.

The Commissioner of Police, if the complaint is being dealt with by a Police Standards Command member; otherwise the Ombudsman. 	
·	responsible Minister(a)	For an Agency, it means the Minister administering the Agency.
(b)	For a public authority, it means the Minister administering the Act under which the authority is constituted or established.
(c)	For the Police Force, it means the Police Minister.
(d)	For an entity prescribed by Regulations, it means the Minister prescribed in the Regulations for the entity.	
·	review right Refers to:
(a)	the right of appeal.
(b)	the right of review before a tribunal.
(c)	the remedy by way of legal      proceedings through a court.	
·	StateA State of the Commonwealth including the Australian Capital Territory.	
·	tribunalAn entity (including an individual other than a court) established under an Act that has judicial or quasi-judicial functions.

Such an entity would practice or conform to the administration of justice having a partly judicial character by possession of the right to hold hearings on and conduct investigations into disputed claims and alleged infractions and to make decisions in the general manner of courts.	
·	witnessIn reference to a witness at a hearing during an investigation by the Ombudsman, means a person required by notice under clause 53 to attend the hearing to answer relevant questions.	
·	working day A day other than a Saturday or Sunday or a public holiday 	

Division 2 – Basic concepts about public authorities and administrative actions	
Clause 5	Public Authority	
Clause 1	Establishes the Ombudsman’s jurisdiction, i.e. the areas of the Northern Territory Government and local government about which a complaint can be made.

A “public authority” is defined as the following:
·	an Agency;
·	the Police Force;
·	the Power and Water Corporation;
·	a local government council;
·	an entity established for a public purpose by a law – for example the Charles Darwin University or the Batchelor Institute of Indigenous Tertiary Education; and
·	an entity specified in an Act or prescribed by Regulation.	
Clause 6	Administrative action	
Clause 1	Establishes the types of administrative action that can be subject of a complaint.

A person can make a complaint about administrative action, which is defined as any action about a matter of administration, including a decision or act, failure to make a decision or do an act, formulating a proposal or intention and the making of a recommendation. 

The administrative action of a public authority includes action by, in or for a public authority; action by or for an officer of the authority in relation to a function of the authority or of the officer; and action by an entity that is not a public authority but is carrying out acts for or in relation to functions of the authority (e.g. outsourced contracts).

A person may also make a complaint about a recommendation made to an Administrator or a minister. A complaint cannot be made about a decision of an Administrator or minister (refer clause 15).	

Division 3 – Basic concepts about police officers and their conduct	
Clause 7	Conduct of police officer	
Establishes the kinds of police conduct subject to a complaint.
(1)	“Conduct of a police officer” is any decision or act in relation to the exercise and performance of powers and functions of a police officer and includes a failure to make a decision or act.
Off duty conduct is not included and is not within the Ombudsman’s jurisdiction, unless the police office is off duty but purports to be on duty (e.g. shows their warrant card).
(2)	The conduct of a police officer when performing duties other than under the Police Administration Act, i.e. in the capacity of a public official, can also be complained about, e.g. enforcing fisheries legislation.	
Division 4 – Criminal Responsibility	
Clause 8
Application of Criminal Code	
Part IIAA of the Criminal Code, which sets out criminal responsibility relating to offences, applies to an offence against this Act.	
PART 3 – OFFICE OF OMBUDSMAN, FUNCTIONS AND POWERS	
Division  1 – Office of Ombudsman	
Clause 9Ombudsman	
Establishes an Office of the Ombudsman for the Northern Territory.	
Division 2 – Functions and powers	
Clause 10Functions	
The functions of the Ombudsman are:
(a)	to investigate and deal with complaints about administrative actions;
(b)	to make recommendations to public authorities about ways to address complaints;	
Clause 10(c)	to assist authorities in improving practices and procedures generally;
(d)	to investigate and deal with complaints about police conduct including;
(e)	to consider and prepare reports about the investigation of police complaints and recommend appropriate action; and
(f)	any other functions prescribed under this or any other Act.	

Clause 11Powers	
Clause 1	The Ombudsman has power to do all things necessary or convenient to perform his/her functions.	
Clause 12Independence	
Establishes that the Ombudsman is not subject to any direction by another person in relation to complaints and investigations and must carry out the functions in relation to the handling of complaints and investigations independently, impartially and in the public interest.	
PART 4 – OMBUDSMAN’S JURISDICTION FOR ADMINISTRATIVE
 ACTIONS OF PUBLIC AUTHORITIES AND POLICE CONDUCT	
Clause 13Interpretation	
Extends the reference to ‘investigation’ about the administrative actions of a public authority or police conduct to include other ways of dealing with a complaint, e.g. through conciliation.	
Clause 14Matters for investigation	
(1)	Establishes that an investigation can commence:
(a)	on receipt of a complaint; or
(b)	by the Ombudsman deciding to carry out an investigation without first having received a complaint if they believe it is an issue of public interest, health or safety – the own initiative power.
(2)	The Ombudsman can still investigate even if another piece of legislation says the matter is final or cannot be appealed against, challenged, reviewed, quashed or called in question.	

Clause 15	Executive and ministerial matters must not be investigated	
Clause 1		(1)	The Ombudsman does not have the power to investigate the deliberations of Executive Council or Cabinet or their committees. 
(2)	The Ombudsman cannot question the merits of a decision made by the Administrator, a minister, Executive Council or Cabinet, or their committees.	
Clause 16	What administrative actions may not be investigated	
	(1)	Establishes the administrative actions which cannot be investigated by the Ombudsman:
(a)	a person carrying out work of a judicial nature;
(b)	a tribunal (or a member) when exercising a deliberative function or in relation to conciliation or mediation processes to a complaint or dispute under an Act (although the Ombudsman can investigate for unreasonable delay of an action by a public authority under subclause (3));
(c)	legal advisers to, or counsel for, the Territory or a minister;
(d)	the Coroner when conducting an inquest or investigation under the Coroners Act;
(e)	a magistrate or Justice when conducting a preliminary examination for an indictable offence under the Justices Act;
(f)	the Director of Public Prosecutions (DPP) relating to a DPP exempted matter (although the Ombudsman can investigate for unreasonable delay under subclause (3));
(g)	a public authority in relation to the employment, including the employment conditions of a person;
(h)	the Parole Board established by the Parole of Prisoners Act or the Chairman of that Board; and
(i)	the Territory Insurance Office (TIO).	

Clause 16	Subclause 16(2) provides that a public authority, other than those mentioned in subclause (1), is not precluded from agreeing to the Ombudsman conducting an investigation into a matter, even if a right of appeal is available to the complainant.

If the Ombudsman is satisfied it is unreasonable to expect the complainant to use that right / remedy, or if it would cause injustice, then the Ombudsman is permitted to investigate.

Subclause 16(3) provides that the Ombudsman can investigate the administrative action of a tribunal or a member of a tribunal or the Director of Public Prosecutions if satisfied that there has been an unreasonable delay.	
Clause 17	Parliamentary reference of matter for investigation	
Clause 1		The Legislative Assembly (or a committee) may refer a matter to the Ombudsman for investigation. The Ombudsman must investigate, if it is:
(a)	within the Ombudsman’s jurisdiction; or
(c)	an administrative action taken by a public authority that would be within the Ombudsman’s jurisdiction under 16(2)(a) if the authority agrees to the investigation, or under 16(3) if the Ombudsman is satisfied there has been an unreasonable delay by a tribunal or the DPP.	
Clause 18	Ombudsman to investigate complaint referred by complaints entity	
Clause 1		Requires the Ombudsman to deal with (including declining a complaint) referred to the Ombudsman by another complaints entity established by an Act, e.g. the Information Commissioner or the Health and Community Services Complaints Commissioner, as if the complaint had been made under the Ombudsman Act.	
Clause 19	Liaison with complaints entity	
Clause 1		(1)	The Ombudsman may liaise with a complaints entity, e.g. the Anti-Discrimination Commission, regarding their respective investigations into a matter and may enter into an arrangement with the complaints entity so as to avoid duplicating investigative efforts.
(2)	If an arrangement is entered into, both the Ombudsman and the other complaints entity must publish the particulars of that arrangement in their respective annual reports.	
Clause 20	Application to Supreme Court	
	Prescribes those people who can apply to the Supreme Court for a determination as to whether the Ombudsman has jurisdiction over a matter being investigated. Those people are, the Ombudsman, a complainant, a police officer, the Commissioner of Police or the principal officer of a public authority.	
PART 5 – COMPLAINTS ABOUT ADMINISTRATIVE ACTIONS OF PUBLIC
AUTHORITIES AND POLICE CONDUCT		
Clause 21	Who may make complaint	
Clause 1		Specifies the class of people who may make a complaint to include:
(a)	a person aggrieved by the action or conduct;
(b)	a representative of an aggrieved person; or
(c)	a third party or representative of a third party.

A police officer can only complain about the conduct of another police officer if the conduct constitutes an offence punishable by imprisonment or is likely to bring the Police Force into disrepute or diminish public confidence in it.

A third party can only make a complaint if it raises a substantive issue or if they have first hand information about the matter being investigated.	
Clause 22	Complaint for deceased person	
Clause 1		The Ombudsman may determine a person as a suitable representative to make a complaint on behalf of a deceased person.	
Clause 23	Making complaint about administrative action	
Clause 1		(1) & (2)	A complaint about an administrative action of a public authority may be made to the Ombudsman orally or in writing.
(3) & (4)	The Ombudsman can require a person to put the complaint in writing or for it to be verified by way of a statutory declaration.	

Clause 24	Making police complaint 	
	(1) & (2)	A complaint about police conduct can be made to either the Ombudsman or a police officer, other than the police officer the complaint is about.
(3)	The complainant does not need to identify the police officer about whom they are complaining.
(4) & (6)	The complaint may be made orally or in writing, however the Ombudsman can require the complaint to be made in writing or be verified by way of a statutory declaration.	
Clause 25	When complaint to be made	
	(1) & (2)	A complaint must be made within one year after the aggrieved person had notice, or might reasonably be expected to have had notice, of the action or conduct.
(3)	The Ombudsman has the discretion to accept a complaint after the one-year period if it is in the public interest to do so or if special circumstances exist.	
Clause 26	Sets out the assistance that must be given to a prisoner by an officer in charge of the prison, or place where the prisoner is being detained, to ensure they are able to make a complaint to the Ombudsman and includes:
·	the provision of facilities to make a written complaint including relevant information about making a complaint and an envelope in which to seal it; and
·	the sending of the sealed envelope, by the officer, to the Ombudsman without undue delay.
Written correspondence in a sealed envelope between a prisoner and the Ombudsman vis a vis must not be opened or inspected by any prison official. The Ombudsman may make arrangements for the identification and delivery of sealed envelopes from his office to prisoners.	
Clause 27	Effect of restrictive provisions on complaint	
	Removes any statutory prohibitions or restrictions on communication between persons that may otherwise prevent a complaint being made.	

PART 6 - ADMINISTRATIVE ACTIONS OF PUBLIC AUTHORITIES	
Division 1 - Preliminary inquiries	
Clause 28Preliminary inquiries about administrative action	
(1)	The Ombudsman may make preliminary inquiries of a public authority in order to determine whether the matter is within the Ombudsman’s jurisdiction to investigate.
(2)	If the matter is within the Ombudsman’s jurisdiction, preliminary inquiries may again be made to determine whether the Ombudsman should investigate.
(3)	Preliminary enquiries can be undertaken on the Ombudsman’s own initiative.
(4)	If a complaint is made about an action other than an administrative in nature, but the Ombudsman considers the complaint was made as a result of an administrative action, the complaint is taken to have been made about that administrative action.
(5)	None of the above applies in relation to a parliamentary reference.	
Clause 29Principal officer to give help	
Clause 1	A principal officer must provide the Ombudsman with reasonable help in conducting a preliminary inquiry. This is because the Ombudsman has stronger powers when dealing with an investigation.	
Clause 30Request for non-disclosure of information and other things	
A principal officer of a public authority may, in writing, ask the Ombudsman not to disclose information obtained during preliminary inquiries to anyone else, without the principal officer’s approval. The Ombudsman must consider the request and must inform the principal officer of the decision and the reasons for it.	

Division 2 – Decisions about referring and investigating complaints	
Clause 31Decision on complaint without investigation	
(1)	Allows the Ombudsman to make a decision on a complaint without investigation where a preliminary inquiry concludes that an investigation of administrative action is authorised.
(2)	The Ombudsman only has such discretion where the complaint may be resolved expeditiously.
(3)	All parties to the complaint must be informed of any decision by the Ombudsman in relation to the complaint.	
Clause 32Referral of complaint to complaints entity	
(1)	The Ombudsman may refer a complaint made to a complaints entity under an Act, e.g. to the Information Commissioner where the complaint relates to interference with a person’s privacy in the handling of information; or to the Commissioner for Health and Community Services Complaints if it is within the Commissioners jurisdiction.
(2)	The Ombudsman must give written notice of the referral to the parties to the complaint and, if notice has already been given of an intention to investigate, to the responsible Minister.	
Clause 33When Ombudsman may decline to deal with complaint	
Even if a complaint is within the Ombudsman’s jurisdiction, he/she may decide to decline to deal with the complaint if:
(a)	the complaint is trivial, frivolous, vexatious or not made in good faith;
(b)	the complainant does not have a sufficient interest in the action or the subject of the complaint;
(c)	the complainant has not made a complaint to the public authority in the first instance;
(d)	the investigation of the complaint is unnecessary or unjustified; or
(e)	where the complaint is made by a third party, the complaint does not satisfy the requirements that it raises a substantive issue or that the complainant has first-hand evidence of the incident leading to the complaint.	

Clause 34	Ombudsman need not investigate if investigation by complaints entity	
Clause 1		The Ombudsman may decide not to investigate a complaint if  satisfied that another complaints entity (e.g. Information Commissioner, Anti-Discrimination Commissioner) has or will investigate the matter to an equivalent level to that of the Ombudsman.	
Clause 35	Decisions about investigating if complaint made to public authority	
	To allow a public authority a reasonable time to resolve the issue themselves, where the complainant has made a complaint to the public authority in the first instance, the Ombudsman may decide not to investigate until the complainant advises that no redress, or no adequate redress, has been granted by the public authority.

If either no redress, or no adequate redress, has been granted, the Ombudsman (provided no decision is made under clause 33 to decline to investigate or clause 34 investigation by another complaints entity) must investigate if satisfied that the public authority had enough time to resolve the complaint or that the redress was not adequate.	
Clause 36	Notice of decision not to investigate	
	If a matter is not within the Ombudsman’s jurisdiction or the Ombudsman makes a decision not to investigate the complaint, the Ombudsman must inform -
·	the complainant; and
·	the principal officer of the public authority, if notice has already been given of an intention to investigate, of the decision and the reasons for it.	
Division 3 – Conciliation and mediation		
Clause 37	Dealing with complaint by conciliation or mediation	
Clause 1		The Ombudsman can use either conciliation or mediation to resolve a complaint at any time either through his/her own initiative or at the request of a party to a complaint.	
Clause 38	Who can be conciliator or mediator	
Clause 1		A conciliator or mediator can be any person who in the opinion of the Ombudsman is appropriately qualified.	
Clause 39	Objection to conciliator or mediator	
	In the event a party to the complaint objects to a person acting as a conciliator or mediator, the Ombudsman must appoint an alternate person to act in that capacity.	
Clause 40	Suspending investigation	
Clause 1		Where conciliation or mediation occurs as part of the complaint, the Ombudsman may suspend any investigation pending the result of a conciliation or mediation process.	
Clause 41	Participation voluntary	
Clause 1		Participation in conciliation and mediation is completely voluntary and any party to the complaint can withdraw at any time.	
Clause 42	Progress report	
Clause 1		If requested by the Ombudsman, a person acting as the conciliator or mediator must supply a written report on the progress of the conciliation or mediation process.	
Clause 43	Termination	
Clause 1		The Ombudsman can terminate a conciliation or mediation at any time if satisfied that it is not likely to resolve the complaint.	
Clause 44	Resolution of complaint	
	There is the option to record in writing any agreement reached through conciliation or mediation. This is then signed by both parties and a copy given to each.

There is a statutory cooling off period of 14 days which commences upon the parties signing the agreement.  During that period, a party may cancel the agreement, by written notice.   At the end of the cooling off period, the agreement becomes binding.	
Clause 45	Restricted use of information	
Clause 1		Anything said or admitted during conciliation or mediation (or any document prepared for the process) is confidential and evidence of it cannot be:
(a)	used in any later investigation of the complaint without permission; or
(b)	admitted in any disciplinary, tribunal or court proceeding.	
Clause 45	However, the information is able to be used to prosecute a person for an offence under this Act.

An agreement between parties pursuant to clause 44(5) is not subject to these restrictions.	
Clause 46 	Effect of unsuccessful conciliation or mediation	
	If a conciliation or mediation is unsuccessful, the complaint is treated as if conciliation or mediation never occurred. The conciliator or mediator should take no further part in dealing with the complaint, but does this part does not apply to the Ombudsman’s conciliation and mediation powers relating to a complaint.	
Division 4 – Investigations		
Subdivision 1 – Procedures		
Clause 47	Notice of investigation	
Clause 1		The Ombudsman must notify the complainant, the relevant principal officer and the responsible Minister in writing prior to commencing an investigation.	
Clause 48	Conduct of investigation	
Clause 1		An investigation by the Ombudsman must be completed as soon as possible after:
(a)	notice is given of the his/her intention to conduct an investigation into a complaint;
(b)	deciding to conduct an own motion investigation; or
(c)	the Legislative Assembly refers a matter to him/her.

The Ombudsman may delay investigation of a matter, if the complainant has a right of appeal/review before a tribunal or a remedy by way of a legal proceeding in a court, until satisfied that the complainant cannot or will not pursue the right or remedy, or that the proceeding has reached an end.	

Clause 49	Procedure generally	
	(1) & (2)	The Ombudsman must maintain confidentiality and conduct an investigation in private. He/she is not bound by the rules of evidence but must comply with the rules of natural justice, and does not have to hold a hearing. Subject to satisfying these requirements, the Ombudsman may conduct the investigation in any way he/she considers appropriate.
(3) & (4)	The Ombudsman may obtain any relevant information, consult with any person and make any inquiries as appropriate. The Ombudsman may require the information to be given on oath (which may be administered by the Ombudsman) or verified by statutory declaration.  Note that pursuant to clause 8 of the Oaths Act, a person may make an affirmation in lieu of taking an oath.	
Clause 50	Consultation	
Clause 1		(1)	The Ombudsman must consult with the following persons during the course of an investigation:
·	the principal officer of the public authority; or a minister or the presiding member of a local government council, if either person asks to be consulted.
(2)	Where an investigation relates to a recommendation made to the Administrator, a minister or a local government council and the Ombudsman is considering making an adverse report, he/she must consult with:
·	the minister responsible for the public authority that made the recommendation to the Administrator;
·	the minister to whom a recommendation was made; or
·	the presiding member of the council to whom a recommendation was made.
(3) & (4)	While the Ombudsman may consult with any appropriate person in conducting an investigation, he/she may in particular consult with a minister concerned in the subject matter of an investigation or the presiding member of council in investigations relating to an action of that council.	
Clause 51	Hearing for investigation	
	If the Ombudsman holds a hearing for an investigation, a person required to attend the hearing may, with the Ombudsman’s approval, be represented by an agent/legal representative.

The agent/legal representative may make submissions to the Ombudsman and, with the Ombudsman's approval, ask relevant questions of witnesses.	
Subdivision 2 – Ombudsman’s powers for investigation		
Clause 52	Requirement to give information, document or thing	
Clause 1		(1)	Sets out the powers of the Ombudsman in relation to the provision of information or documents that may require a person, by written notice, to provide the Ombudsman with information, a document or anything relevant to the investigation.
(2) to (5)	The principal officer may ask the Ombudsman, in writing, not to release information (e.g. sensitive or confidential information) which the agency has provided for the purposes of the investigation, without the principal officer's approval. The Ombudsman may agree or refuse the request, but must inform the principal officer of the decision and the reasons for it.	
Clause 53	Requirement to attend hearing	
Clause 1		Provides the power to the Ombudsman to require a person, in writing, to attend a hearing, at which the person may be required to provide information, documents and/or answer questions relevant to the investigation.	
Clause 54	Investigation at public authority’s premises	
	Outlines the Ombudsman’s power to enter and inspect a public authority’s premises (except where all or part is used as a residence) during an investigation for the purposes of collecting information including copies of documents.

An officer of the public authority may also be required by the Ombudsman to give the Ombudsman reasonable help in exercising this power.	

Clause 55	Ombudsman may issue direction in relation to administrative action	
	The Ombudsman has authority to issue an injunctive-like notice to a public authority to stop them performing an administrative action for a period not exceeding 45 days if satisfied that:
(a)	it is necessary to prevent prejudice to either the investigation or the implementation of a resulting recommendation; 
(b)	compliance with the notice will not result in the authority breaching a contract or other legal obligation or cause undue hardship to a third party; and
(c)	it is necessary to prevent serious hardship to a person.
Such a notice must be in writing and may be given before or during an investigation.

A public authority has a right to decide not to comply with the notice if satisfied the non-compliance would be reasonable and justifiable; and must immediately give written notice of its decision to the Ombudsman and, if asked to do so by the Ombudsman, its reasons.  

Non-compliance may result in the Ombudsman, if satisfied the authority's failure to comply was unjustified or unreasonable, providing a report to the Chief Minister for tabling in the Legislative Assembly.	
Clause 56	Custody of thing given to Ombudsman	
	This clause relates to the documents or things given to the Ombudsman during an investigation and provides that the Ombudsman must make the documents or things reasonably available for inspection by a person who would have a right to inspect, such as the original owner, but otherwise the Ombudsman has a right to keep them for a reasonable period to conduct the investigation and to make copies of documents.	
Division 5 – Reports and recommendations on investigations		
Clause 57	Report to complainant	
Clause 1		The Ombudsman must inform the complainant of the results of an investigation.  The Ombudsman has discretion as to the way in which that information is provided.	

Clause 58	Report to public authority	
Clause 1		The Ombudsman must inform the principal officer of the results of an investigation.  The Ombudsman has discretion as to the way in which that information is provided, e.g. orally or in writing.	
Clause 59	Adverse reports	
Clause 1		Where the Ombudsman makes adverse findings with regard to an administrative action complained about, an investigation report must be prepared stating the reasons for the Ombudsman’s adverse finding and setting out any action that he/she considers appropriate.

To make an adverse finding, the Ombudsman must be satisfied that one or more of the following criteria apply:

(a)	that the action appeared contrary to law or was, or was in accordance with a law or practice that is, unreasonable, unjust, oppressive, improperly discriminatory or was taken for an improper purpose, on irrelevant grounds or taking into account irrelevant considerations or for which reasons were not given where they should have been given or was based on a mistake of law or fact or was wrong; and
(b)	that action should be taken to resolve the matter.
A copy of the investigation report stating the Ombudsman’s reasons must be provided to the responsible Minister for the public authority and the presiding member of the council where relevant.	
Clause 60	Report of breach of duty or misconduct	
Clause 1		There is an obligation on the Ombudsman to report any evidence, uncovered during an investigation, of misconduct or breach of duty by an officer of a public authority to the principal officer of that authority.	
Clause 61	Report containing adverse comment	
	If the Ombudsman intends to make an adverse comment about a person or public authority in an investigation report, that person or the principal officer of the authority must be allowed a reasonable opportunity to respond to that comment, prior to the finalisation of the report.

If the Ombudsman persists with making the adverse comment in the final report, the person’s submission must be taken into account and fairly represented in the final report.	
Clause 62	Report may include recommendations	
Clause 1		The Ombudsman may include in a (oral or written) report to the principal officer of a public authority, any recommendations that are appropriate in the context of the investigation into administrative action.	
Clause 63	Action after report and recommendations	
	(1) & (2)	Where the Ombudsman makes recommendations in a report to a public authority, the Ombudsman may request feedback from the public authority as to the level of compliance with those recommendations.
(3)	If the Ombudsman considers that there does not appear to have been an appropriate level of action taken by the public authority to implement the recommendations, the Ombudsman may provide a copy of the report, together with the principal officer’s comments, to the responsible Minister or, if relevant, the presiding member of a local government council.
(4)	Further, the Ombudsman may provide an additional report to the Chief Minister in relation to the original report which must then be tabled in the Legislative Assembly.	
Clause 64	Ombudsman to inform complainant of action taken	
Clause 1		If the Ombudsman provides a report to the responsible Minister or the Chief Minister on the lack of implementation of recommendations by the public authority, the Ombudsman must inform the complainant and may make such comments as the Ombudsman considers appropriate.	
PART 7 – POLICE CONDUCT		
Division 1 – Preliminary procedures for police complaints		
Clause 65	Notice of complaint to Ombudsman	
	(1)	If a complaint about police conduct is made to a police officer, the officer must immediately refer it to the officer in charge of the Police Standards Command and must comply with the Commissioner's directions on referrals.
(2)	The officer in charge must then provide the Ombudsman with written notice of the complaint and a copy of either the written complaint or of the statement of particulars of the complaint of the police officer who took the complaint.	
Clause 65	(3)	The officer in charge may also make a recommendation to the Ombudsman as to how the complaint should be resolved pursuant to clause 66 of this Act. 	
Clause 66	Ombudsman to assess and decide how to deal with complaint	
	(1)	Upon receipt of a police complaint, whether directly or by reference from Police, the complaint must be assessed to determine if it will be accepted and how it will be dealt with.
(2)	The Ombudsman must make one of five decisions:
(a)	to decline the complaint;
(b)	to resolve the complaint by conciliation;
(c)	to resolve the complaint through the police complaints resolution process;
(d)	to refer the complaint to the Police Professional Responsibility Command for investigation; or 
(e)	to deal with the complaint as an Ombudsman investigation.
(3)	This decision must be made as soon as practicable after the Ombudsman becomes aware of the complaint.
(4)	Appropriate inquiries (which are not investigations) can be made during the assessment stage by the Ombudsman; or
(5)	at the request of the Ombudsman to the officer in charge of the Police Standards Command to assist with coming to a decision.	
Division 2 – Declining to deal with police complaints		
Clause 67	When Ombudsman to decline to deal with complaint	
	The Ombudsman has discretion not to deal with a police complaint if satisfied that:
(a)	the complaint is trivial, frivolous, vexatious or is not made in good faith;
(b)	the complaint does not have a sufficient interest in the complaint and there are no special reasons justifying its being dealt with;
(c)	disciplinary procedures have commenced against the police officer whose conduct is the subject of the complaint;	
Clause 67	(d)	the police officer whose conduct is being investigated has been charged with an offence related to the conduct; or
(e)	it is not in the public interest.

The Ombudsman may decide not to deal with the complaint if satisfied that the complaint is being dealt with by another complaints entity has or will investigate the complaint to an equivalent level to that of the Ombudsman.	
Division 3 – Conciliation		
Clause 68	Definition	
	“Relevant official” is defined for the purposes of the Division on conciliation of police complaints, as the Police Commissioner, where the complaint is being dealt with by the Police Standards Command, or in any other case, the Ombudsman.	
Clause 69	When police complaint may be dealt with by conciliation	
	The Ombudsman may decide to deal with a police complaint by conciliation at any time prior to or during an investigation, either on his/her own initiative or at the request of one of the parties.	
Clause 70	Who can be conciliator	
Clause 1		The conciliator must be appropriately qualified as determined by the Police Commissioner, where the complaint is being dealt with by the Police Standards Command, or in any other case, the Ombudsman.	
Clause 71	Objection to conciliator	
	The Police Commissioner, where the police complaint is being dealt with by the Police Standards Command, or in any other case, the Ombudsman may appoint a replacement conciliator where a party to the complaint objects to the original conciliator.	
Clause 72	Suspending other police complaint process	
Clause 1		Provides that, if another process of resolution of a police complaint has been started, it is suspended pending the result of the conciliation, unless the Ombudsman decides otherwise.	
Clause 73	Participation voluntary	
Clause 1		The nature of conciliation is voluntary and any party to the complaint may withdraw from participating in the conciliation at any time.	
Clause 74	Progress report	
Clause 1		The conciliator must provide a written progress report of the conciliation if requested to do so by the Ombudsman, or by the Police Commissioner if the police complaint is being dealt with by the Police Standards Command.	
Clause 75	Termination	
Clause 1		The Police Commissioner, where the police complaint is being dealt with by the Police Standards Command, otherwise the Ombudsman, may terminate the conciliation at any time if it appears unlikely that the complaint will be resolved.	
Clause 76	Report of results of conciliation	
	The Ombudsman must report the outcome of the conciliation to the Commissioner and vice versa.

If satisfied that the police complaint has been properly resolved through conciliation, the Ombudsman may then decide not to further investigate the complaint.	
Clause 77	Effect of unsuccessful conciliation	
	If conciliation is not successful, the complaint is treated as if conciliation had not been attempted.

Further, the conciliator must not have further involvement in the police complaint; although if the conciliator was the Ombudsman, the Commissioner or the Officer in Charge of the Police Standards Command, their powers and functions to make decisions in relation to the complaint are not affected.	
Division 4 – Police complaints resolution process and Police Standards
Command investigations of police complaints		
Subdivision 1 – Police complaints resolution process		
Clause 78	When police complaint may be dealt with by resolution process	
Clause 1		The Ombudsman may decide that a police complaint be dealt with by the police complaints resolution process, under a police complaints agreement (refer clause 151) made between the Ombudsman and the Commissioner, if the conduct complained of is conduct to which the agreement applies.	

Clause 79	Conduct and report of resolution process	
	The police complaints agreement, made under clause 151, governs the conduct and reporting of the police complaints resolution process.	
Subdivision 2 – Police Standards Command investigations of police
complaints		
Clause 80	When complaint to be investigated by Police Standards Command	
Clause 1		The Ombudsman has authority to decide whether the Police Standards Command should investigate a complaint.	
Clause 81	Conduct of investigation	
Clause 1		The officer in charge of the Police Standards Command is responsible for ensuring the investigation is completed as soon as practicable and in the manner he/she considers appropriate, subject to any direction of the Police Commissioner.	
Clause 82	General Powers of Police Standards Command	
Clause 1		A member of the Police Standards Command has authority to make inquiries and obtain information, documents and things considered appropriate.  However, the member is not entitled to break any law in order to carry out the investigation.	
Clause 83	Police Standards Command member’s power to give direction to police officer	
	(1)	A Police Standards Command member has authority to give relevant directions to require a police officer to give information, produce a document or thing or answer questions.
(2)	There is a requirement that if the member is giving the directions to a police officer whose conduct is the subject of the complaint, the member must advise that police officer that a complaint has been made, the nature of the complaint and that it is being investigated.
(3)	This requirement can only be avoided if the officer in charge of the Police Standards Command believes that doing so may prejudice the investigation.
(4)	This clause does not limit the powers or functions a police officer would have apart from this Act in relation to the investigation of an offence.	

Clause 84	Request by Ombudsman on how to conduct investigation	
	(1)	The Ombudsman may ask the officer in charge of the Police Standards Command to conduct their investigation in a particular way.
(2)	The officer in charge can either agree or disagree with the request.  If he/she agrees, then the investigation must be conducted in that way. If he/she disagrees, then the Ombudsman must be informed and reasons given.
(3)	Upon receipt of the reasons for disagreeing, the Ombudsman may then take his/her request to the Police Commissioner, and ask the Commissioner to direct the officer in charge to conduct the investigation in the particular way.
(4)	The request must be in writing.
(5)	The Commissioner may then agree or disagree with the request. If he/she agrees, then the Commissioner makes the direction to the officer in charge, who must ensure that the investigation is carried out as directed.  If he/she disagrees, then the Commissioner must give written notice to the Ombudsman together with reasons.
(6)	If the Ombudsman is unhappy with the Commissioner’s reasons for refusing to conduct the investigation in line with the request, the Ombudsman has the authority to decide to deal with the complaint under clause 66 in an alternate way.	
Subdivision 3 – General matters		
Clause 85	Ombudsman to oversee police complaints resolution process and investigation	
	The Ombudsman is entitled to require the Commissioner to give him/her information about the progress of the police complaints resolution process or investigation of a police complaint, to arrange for the Ombudsman to inspect any relevant documentation that the Police Standards Command has or to interview persons or discuss the any aspect of a police complaint with the complainant.

Any such requirement by the Ombudsman of the Commissioner must be complied with without unreasonable delay.	

Division 5 – Ombudsman’s investigation of police conduct	
Subdivision 1 – Police complaints	
Clause 86When complaint may be investigated by Ombudsman	
(1)	The Ombudsman can decide that a police complaint should be investigated by the Ombudsman if satisfied:
·	that the complaint is about the conduct of an officer of equal or senior rank to that held by the officer in charge of the Police Standards Command;
·	complaint concerns the conduct of a Police Standards Command member;
·	substance of the complaint relates to the practices, procedures or policies of the Police Force;
·	complaint should, for any other reason be investigated by the Ombudsman.  
(2)	The Ombudsman may also decide a police complaint should be investigated if, he/she deferred or discontinued an investigation or decision pending the completion of a proceeding or disciplinary procedure and on completion of that proceeding or procedure the Ombudsman considers a complaint should be investigated (refer clause 107).
(3)	The Ombudsman may also decide that a police complaint should be investigated in conjunction with a Police Standards Command member or that a police complaint should not be investigated by a Police Standards Command member.	
Subdivision 2 – Conduct of investigations	
Clause 87Application of Subdivision	
Clause 1	This subdivision applies to police complaints where the Ombudsman decides to investigate under clause 86 (police complaints) or where a parliamentary reference is made for the investigation of police conduct.  It also applies where the Ombudsman decides to investigate the conduct of a police officer under the own initiative power. 	

Clause 88	Conduct of investigation	
	There is an obligation on the Ombudsman to complete the investigation as soon as practicable after making a decision to investigate or after parliamentary reference.	
Clause 89	Procedures and powers	
Clause 1		The following powers and procedures apply to the investigation of police complaints by the Ombudsman:

(1)	Part 6, Division 4, other than clause 48 (conduct of an investigation), clause 50 (procedure generally) and clause 55 (Ombudsman may issue direction in relation to administrative action).
(2)	Clause 54(d) applies so that a reference to an officer of public authority is a reference to a police officer or a public sector employee.
(3)	If a Police Officer under investigation because of a complaint is issued a notice to give information, a document or thing (clause 52), or to attend a hearing (clause 53) any notice issued must inform the Officer that:
·	a complaint has been made against them and the nature of that complaint; and
·	that an investigation is being conducted.
(4)	Subclause 3 above does not apply if the Ombudsman is of the mind that informing the police officer may prejudice the conduct of the investigation.	
Clause 90	Ombudsman may investigate consequential action	
	The Ombudsman may also investigate the conduct of a police officer taken in consequence of a complaint, as if a complaint were made about that police officer’s conduct.	
Division 6 – 	Reporting requirements and related provisions	
 Subdivision1) 	Investigations if Commissioner reports to parties	
Clause 91	Application of Subdivision	
Clause 1		Applies to investigations conducted by the Police Standards Command and where they are required to produce an investigation report, in line with a police complaints agreement.	

Clause 92	Report of investigation by Police Standards Command member	
Clause 1		On completion of an investigation, the Police Standards Command must provide the Police Commissioner with a written investigation report, which must include an assessment of the police conduct in question and which may also contain an assessment of whether the conduct was, for example, contrary to law, unreasonable, unjust, oppressive, improperly discriminatory or otherwise wrong.

The report may also contain recommendations as to action that should be taken in relation to the complaint.	
Clause 93	Commissioner to release report and comments	
	The Police Commissioner is required to:
·	give the Ombudsman a copy of the Police Standards Command investigation report, together with the Commissioner’s assessment of the conduct and any other comments on the investigation, as he/she considers appropriate; and
·	inform, at the time and in a way the Commissioner considers appropriate, the complainant and the police officer involved in the matter as to the outcome of the investigation;
·	the Commissioner may make such comments on the investigation, as he/she considers appropriate.

The Commissioner has the option to direct the Police Standards Command to carry out further investigation prior to taking the above steps.	
Subdivision 2 – 	Investigations if Commissioner reports to Ombudsman	
Clause 94	Application of Subdivision	
	Applies to investigations conducted by the Police Standards Command and where they are required to produce an investigation report, in line with the police complaints agreement.	
Clause 95	Report of investigation by Police Standards Command member	
	The officer in charge of the Police Standards Command is required to give the Police Commissioner a written investigation report.	
Clause 96	Commissioner to give report and comments to Ombudsman	
Clause 1		The Police Commissioner is required to provide the Ombudsman with a copy of the Police Standards Command investigation report together with the Commissioner’s assessment of the conduct and any other comments on the investigation, as he/she considers appropriate.

However, the Police Commissioner may instruct the Police Standards Command to carry out further investigation prior to providing that report to the Ombudsman.	
Clause 97	Ombudsman’s assessment and recommendations on investigation	
	On receipt of the investigation report, the Ombudsman is required to provide the Police Commissioner with a written assessment of the Police Standards Command report, which may include recommendations as to action that should be taken in relation to the complaint (refer clause 101).	
Subdivision 3 – 	Investigations by Ombudsman	
Clause 98	Application of Subdivision	
Clause 1		Applies to investigations of a police complaint conducted by the Ombudsman including parliamentary reference or of the Ombudsman’s own initiative.	
Clause 99	Ombudsman to report on investigation	
Clause 1		The Ombudsman must provide the Police Commissioner with a written investigation report at the conclusion of the investigation.
The report must contain an assessment of the conduct and any recommendations as to what action should be taken in relation to the complaint.	
Clause 100	Report containing adverse comment	
	If the Ombudsman intends to make an adverse comment about the Police Commissioner, the Police Force, the Police Civil Employment Unit, a police officer or any other person, the Ombudsman must allow that person or entity a reasonable opportunity to respond to the comment prior to the finalisation of the report.

If the Ombudsman persists with including the adverse comment, the person’s submission must be taken into account and fairly represented in the Ombudsman’s report.	

Subdivision 4 – Content of reports	
Clause 101  Assessments and recommendations	
In preparing the report, the Ombudsman must consider whether the police conduct:
·	constituted an offence or breach of discipline or was contrary to law;
·	was, or was in accordance with an Act, practice, procedure or policy which may be, unreasonable, unjust, oppressive or improperly discriminatory;
·	was based on a mistake of law or fact; and/or
·	was otherwise wrong in the circumstances.
The Ombudsman must also consider whether the police officer exercised a power for an improper purpose or on irrelevant grounds; and/or whether the decision of a police officer to exercise a power or refuse to exercise it involved irrelevant considerations; and/or whether a person entitled to reasons for a decision had not been given them.

A report may include the Ombudsman’s assessment of the police officer’s conduct and may recommend whether any action should be taken in relation to the complaint and, if so, what that action should be, or that no action should be taken and can include:
·	charging a police officer with an offence;
·	taking disciplinary action against a police officer;
·	conducting a conciliation;
·	reconsidering, varying or reversing a decision or to give reasons for a decision;
·	altering the effects of a decision, act or omission; and/or
·	amending an Act, practice, procedure or policy.	
Subdivision 5 – Other provisions relating to reports, assessments and recommendations	
Clause 102Application of Subdivision	
Clause 1	Applies if the Ombudsman gives the Commissioner of Police a report relating to an investigation of police conduct (refer clauses 97(1)(b) or 99(1)).	

Clause 103	Consideration of Ombudsman’s report.	
Clause 1		The Commissioner of Police is required to consider any assessment or recommendations of the Ombudsman in a report and give the Ombudsman written notice of whether the Commissioner agrees or disagrees with the assessment or recommendations. If the Commissioner disagrees:
·	the Commissioner must provide reasons; and the Ombudsman must consider those reasons and give written notice to the Commissioner whether the assessment / recommendation is to remain the same or be varied or a new assessment / recommendation substituted.	
Clause 104	Action on Ombudsman’s report	
Clause 1		The Commissioner has the options of:
·	taking steps to implement the Ombudsman’s recommendations and giving written notice to the Ombudsman of the action taken; or
·	not taking steps to implement the recommendations and giving written notice to the Ombudsman of the reasons.

Upon receipt of the Commissioner’s written reasons for not taking steps, the Ombudsman may provide a copy of the original investigation report and of the notice to the Police Minister and provide the Police Minister with another report, for tabling in the Legislative Assembly, that deals as the Ombudsman considers appropriate, the original investigation report.	
Clause 105	Ombudsman to inform complainant and police officer of action taken 	
Clause 1		Once the Ombudsman has completed an investigation (except for an investigation conducted on a parliamentary reference), the Ombudsman must inform the complainant and the police officer involved of the outcome of the investigation.

If the Ombudsman gives either the Police Minister or the Chief Minister a report about an investigation, then the complainant must be advised.

The Ombudsman can make such comments as he/she considers appropriate, when informing the complainant and/or police officer.	
Clause 106	Commissioner to notify Ombudsman of proceedings taken 	
	The Commissioner must give written notice to the Ombudsman of any action taken against a police officer as a result of an investigation, including disciplinary action or the laying of charges.

If the action taken includes charges being laid or disciplinary procedures started, the Commissioner must give written notice to the Ombudsman of the final outcome of those proceedings.

The Ombudsman cannot discuss the final outcome of any disciplinary procedures to any person without the Commissioners approval.	
Division 7 – 	Other decision-making provisions	
Clause 107	Deferral and discontinuing of dealing with complaint	
Clause 1		If the Ombudsman is satisfied that a proceeding before a court or tribunal or disciplinary procedures have been or are to be commenced in relation to conduct the subject of a complaint, the Ombudsman can defer his/her decision on whether and how to deal with a complaint until the completion of the proceeding or disciplinary process.

This power also applies to investigations that have already commenced; whereby the Ombudsman may discontinue an investigation pending completion of the proceeding or disciplinary procedures.	
Clause 108	Ombudsman may require further action	
Clause 1		If the Ombudsman does not consider that the complaint has been adequately dealt with, upon receiving a report of an investigation of a police complaint or of a police complaints resolution process, the Ombudsman may:
·	refer the complaint to the Police Commissioner for further investigation, who in turn must refer it to the officer in charge of the Police Standards Command for further investigation; or
·	decide to deal with the complaint in another way, e.g. conciliation or investigation (refer clause 66).	

Clause 109	Complainant may ask for investigation to be conducted	
Clause 1		(1)	A complainant may request:
·	that a complaint being dealt with through the police complaints resolution process be instead investigated by either the Police Standards Command or the Ombudsman; or
·	that a complaint being investigated by the Police Standards Command be investigated by the Ombudsman instead.
(2)	The Ombudsman must make a decision as soon as practicable.
(3)	The Ombudsman must refuse the request if satisfied that the complaint has been or is being adequately dealt with.
(4)	If the Ombudsman refuses the request, the investigation or resolution process must continue.
(5)	If the Ombudsman agrees to the request, the complaint is dealt with as if it were made to the Ombudsman in the first instance (i.e. if the investigation is not completed, it must end).	
Clause 110	Revocation or variation of decision, assessment or recommendation	
	If the Ombudsman has made a decision, assessment or recommendation in relation to a police complaint, he/she has the authority to revoke or vary that decision, assessment or recommendation providing:
·	the Ombudsman is satisfied that information was not properly taken into account; or
·	significant new information is obtained.

Where a decision, assessment or recommendation is revoked, it is exercised in the same way and subject to the same provisions under the Act as if it were the original decision.

Anything done in accordance with the original decision, assessment or recommendation is not unlawful merely because it has been revoked or varied under this provision.	

Clause 110	Section 43 of the Interpretation Act (which provides that where an Act confers a power to take an action…the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend or vary any such action …) is not to be limited by this clause.	
Clause 111	Parties to complaint to be informed of decision	
	The Ombudsman must advise the parties to a police complaint of any decision he/she makes in relation to the complaint and the reasons for that decision.  The Ombudsman must advise the parties in the way the Ombudsman considers appropriate.	
Division 8 – 	Miscellaneous provisions	
Clause 112	Commissioner may refer police conduct to Ombudsman	
Clause 1		The Police Commissioner has the authority to refer conduct of a police officer to the Ombudsman for an assessment of how it should be dealt with.	
Clause 113	Commissioner may request non-disclosure of information	
Clause 1		The Police Commissioner can ask the Ombudsman not to disclose information to a party to a police complaint or in a report, provided the request is in writing and outlines the Commissioner’s reasons.

The Ombudsman must consider the request and provide the Commissioner with written notice of his/her agreement or disagreement with this request and the reasons for the decision.	
Clause 114	Restricted use of certain information	
Clause 1		Nothing said or admitted during a conciliation of a police complaint or the police complaints resolution process, nor any document prepared for the process, can be used in a later investigation of the complaint, without consent, and evidence is not admissible in any disciplinary procedures or court / tribunal proceeding.

The information can, however, be used to prosecute a person for an offence under this Act.	

Clause 115	Consultation	
Clause 1		(1)	In conducting an investigation, the Ombudsman must consult with the Police Minister if asked to do so by the Police Minister.
(2)	The Ombudsman may also consult at any time with the Police Commissioner or officer in charge of the Police Standards Command about dealing with a police complaint or police complaints generally, if necessary to achieve the objects of the Act.  This consultation can be initiated by the Ombudsman or at the request of the Commissioner or the officer in charge of the Police Standards Command.	
Clause 116	Register of police complaints	
	The Ombudsman must keep a register of all police complaints, which may be in any form including an electronic form. The register must contain, in respect of each complaint, particulars of:
·	the decision made as to how to deal with the complaint or to decline to deal with it;
·	a decision made under clause 108 to refer a matter to the Police Commissioner for further investigation where the Ombudsman was not satisfied that the complaint was adequately dealt with;
·	the conduct of the police complaints resolution process or investigation; and
·	particulars prescribed by regulations.

A party to a police complaint may apply for an extract of the particulars in the register. The Ombudsman may give the extract to the applicant (no fees payable) if he/she is satisfied it is appropriate to do so.

If the Ombudsman refuses to provide the information they must inform the applicant of the reasons for the refusal.	

PART 8 – CONFIDENTIALITY, OFFENCES AND RELATED PROVISIONS	
Division 1 – Confidentiality and related provisions	
Clause 117Information disclosure and privilege	
Clause 1	The Territory, a public authority or its officers are not entitled to use confidentiality or privilege under a law of the Territory or that would apply under a legal proceeding as a means not to divulge information requested during a preliminary inquiry or investigation, unless
(a)	pursuant to clause 118, the Administrator certifies that divulging the information would not be in the public interest or the Director of Public Prosecutions certifies that divulging the information would prejudice the investigation or detection of an offence; or
(b)	divulging the information would contravene clause 38 of the Northern Territory Aboriginal Sacred Sites Act, which provides that the Aboriginal Areas Protection Authority must not communicate information of a secret nature according to Aboriginal tradition or produce documents produced for the purposes of that Act.

An individual giving information or producing documents for a preliminary inquiry or investigation under this Act has the same privileges as a witness would have in a court proceeding.

This subclause only applies insofar as it is not in conflict with any other provision relating to the conduct of investigations in administrative action and police conduct.  If it conflicts with any other provision, including those in this clause, it only operates to the extent that it does not conflict.	
Clause 118  Disclosure of particular matters not required	
(1)	The Administrator can issue a certificate that would stop the Ombudsman requiring a person providing information where disclosure would be contrary to the public interest.
Disclosure may be contrary to the public interest because it would involve communications between the Executive Council and the Administrator, or communications between the Territory, a State or the Commonwealth, or the deliberations of the Executive Council, a committee of the Legislative Assembly or Cabinet.	

Clause 118	(2)	The Director of Public Prosecutions can also issue a certificate preventing the Ombudsman from requiring a person to provide information where that information might prejudice an investigation or the detection of an offence.

In either of these instances, the Ombudsman must not direct a person to disclose information, to answer the question or to produce evidence.	
Clause 119	Non-compellable witnesses	
	Neither the Commissioner of Police nor officials can be called to give evidence or produce documentation in a court or tribunal with regard to any matter which came to their attention through the course of their work under this Act.

However, evidence can be used for a Supreme Court application to establish jurisdiction under clause 120(3)(c), an offence under this Act or an offence or disciplinary procedure based on the action / conduct the subject of the complaint. 	
Clause 120	Confidentiality of information	
Offence	Any person who obtains information during a preliminary inquiry, conciliation, mediation, police complaints resolution process or investigation must not disclose the information to any person.

This is an offence for which a maximum penalty of $44,000 (400 penalty units) or 24 months imprisonment applies.

The exceptions (refer subclause 3) to this offence are if the information is disclosed:
(a)	for the performance of a function under this Act, including the formulation of a report or recommendations for a report;
(b)	where that information has been disclosed in a report made under the Act or a binding agreement (refer clause 44(5));
(c)	in a proceeding before the Supreme Court to establish jurisdiction (refer clause 20), to prosecute a person for an offence under this Act or for an offence or breach of discipline related to the action/conduct the subject of a complaint;
(d)	by the Commonwealth or State Ombudsman for performing a statutory function; or
(e)	for the consultation of a legal practitioner or, with consent from the Ombudsman, another person.	
Clause 120	A person must intentionally make improper use of information for their own or another person’s benefit or to harm. This is an offence for which a maximum penalty of $44,000 (400 penalty units) or 24 months imprisonment applies.	
Clause 121	Direction not to disclose information	
Offence	It is an offence to disobey a written notice given by the Ombudsman not to disclose:
(a)	any information given to the person by the Ombudsman other than as authorised for inquiry or investigative purposes;
(b)	the fact that an inquiry or investigation is being or has been carried out; or
(c)	the fact that a person is required to provide the Ombudsman with information, documentation or things relating to an investigation.

A maximum penalty of $11,000 (100 penalty units) applies if the offender is a person.  For a body corporate, the penalty is $110,000 (1000 penalty units).

It is not an offence if the disclosure is made for the consultation of a legal practitioner or, with consent from the Ombudsman, another person for the inquiry or investigation.	
Clause 122	Person consulted not to disclose information	
Offence	It is an offence for a consultant who is given confidential information relating to an investigation, preliminary inquiry or a person who provides information to the consultant, to disclose that information to another person or to make use of that information for their own or another person’s benefit or to cause harm to another person.

A maximum penalty of $44,000 (400 penalty units) or 24 months imprisonment applies in ether case.	
Division 2 – 	Other offences and disciplinary provisions	
Clause 123	Misleading statement or document	
Offence	A person must not make a statement or supply a document (misleading information) to a person acting in an official capacity if it does not include relevant information or includes misinformation that is designed to mislead.	

Clause 123	A maximum penalty of $44,000 (400 penalty units) or 24 months imprisonment applies in either case.
It is not an offence where the person supplying the document draws to the person’s attention points out the misleading aspect of the document; and provides information as necessary to correct the misleading document.	
Clause 124	Preventing or obstructing making of a complaint  	
Offence	It is an offence to obstruct or prevent another person from making a complaint.

A maximum penalty of $22,000 (200 penalty units) or 12 months imprisonment applies.	
Clause 125	Offence to commit and act of reprisal	
Offence	It is an offence to cause or threaten to harm a person because they:
·	made or may make a complaint; or
·	have cooperated or my cooperate with an official; or
·	have given or may give documents or information to an official.

The offender must have knowledge or belief that the complainant has made or intends to make a complaint, cooperate or give documents or information and must also intend to take the action in reprisal or to discourage the complainant.

A maximum penalty of $44,000 (400 penalty units) or 24 months imprisonment applies.

A person is not considered to have committed an offence if it is proved that the action was not taken for the reasons stated above or the reason stated above was not a substantial one.

Prosecution under this section must commence within two years of the alleged offence.	

Clause 126 	Failure to comply with particular notices	
Offence	A person must comply with a notice from the Ombudsman to provide information, a document or a thing (refer clause 52) or to attend a hearing (refer clause 53), unless they have a reasonable excuse.

A maximum penalty of $11,000 (100 units) applies to a person.
This clause also provides for what is reasonable or is not a reasonable excuse.

It is not a reasonable excuse to refuse on the grounds that:
·	it would be contrary to the public interest or would contravene another Act (a person is not liable for a penalty under another Act if they breach that Act in complying with the Ombudsman’s notice); 
·	it would disclose legal advice given to a Minister or the Police Force (although it is reasonable to fail to comply if the legal advice is not relevant to the investigation); or
·	if it might tend to show that a police officer has committed a breach of discipline.  

It is a reasonable excuse to refuse to comply with a notice if it requires information or a document which is irrelevant to the investigation or if it might tend to incriminate the person or a police officer. The question of relevancy is one for the person to whom the notice was given.

Note that while this clause only refers to the Ombudsman issuing a notice under clauses 52 and 53 (relating to the investigation of administrative complaints); such powers are imported by clause 90 into the Ombudsman’s powers in investigating police complaints.	
		
Clause 127	Refusal to be sworn or make affirmation	
Offence	It is an offence for a person to refuse to provide information or produce documents under oath or affirmation if required to do so at a hearing which the person was required to attend.

A maximum penalty of $11,000 (100 penalty units) applies to this offence.	

Clause 128	Failure to comply with requirement to help Ombudsman	
Offence	It is an offence for an officer of a public authority, a public sector employee or a police officer to refuse to assist the Ombudsman when required under clause 54(d), without a reasonable excuse.
A maximum penalty of $11,000 (100 penalty units) applies to this offence.	
Clause 129	Obstruction of persons acting in official capacity	
Offence	It is an offence for a person to obstruct the Ombudsman, a staff member from the Ombudsman’s Office, a delegate of the Ombudsman, a consultant or a member of the Police Standards Command while they are exercising a power or carrying out a function under this Act without a reasonable excuse to do so.

A maximum penalty of $22,000 (200 penalty units) or 12 months imprisonment applies to this offence.	
Division 3 – 	Legal proceedings for offences	
Clause 130	Evidentiary certificates	
	A certificate that claims to be signed by the Ombudsman stating details of either the date a person was issued a notice under this Act, or that a document is a copy of, or part of, another document, is evidence of that matter.	
Clause 131	Liability of executive officers of body corporate	
	If a body corporate commits an offence against this Act, each executive officer of the body corporate is also liable the offence, except where:
·	the executive officer did not know, and could not reasonably have been expected to know, that the offence occurred; or
·	the executive officer exercised due diligence to prevent the offence being committed.

A proceeding for an offence can be brought against an executive officer without having to prosecute the body corporate. An executive officer cannot be imprisoned if found guilty of an offence committed by a body corporate in accordance with this clause.

An executive officer includes a director or a person who is responsible for the management of a body corporate (whether in whole or in part).	
PART 9 – 	ADMINISTRATION	
	Division 1 – Matters relating to Ombudsman and Ombudsman’s Office	
	Subdivision 1 – Appointment of Ombudsman and related provisions	
Clause 132	Ombudsman	
	The Administrator appoints an Ombudsman on the recommendation of the Legislative Assembly. A copy of the appointment is required to be tabled by the Chief Minister within six sitting days.	
Clause 133 	Ineligibility for appointment	
Clause 1		A person is not eligible to be appointed as Ombudsman if they have been a member of any Parliament or of any local government council (or equivalent) within the past three years.	
Clause 134	Term of appointment	
Clause 1		Appointment is for a one-off period of seven years.	
Clause 135	Conditions of appointment	
Clause 1		The Administrator determines the conditions under which the Ombudsman holds office; including salary, expenses and allowances, and those conditions must not be altered to the Ombudsman's detriment during the term of office.

A copy of the conditions, determined by the Administrator from time to time, must be tabled in the Legislative Assembly by the Chief Minister within six sitting days.	
Clause 136	Restriction on outside employment	
	The Ombudsman must have the written consent of the Chief Minister to carry out paid work outside the duties under the Act.	
Clause 137	Leave of absence	
Clause 1		The Chief Minister may allow the Ombudsman leave of absence on such conditions as the Chief Minister decides.	
Clause 138	Resignation	
Clause 1		To resign, the Ombudsman must give written notice to the Administrator.	

Clause 139	Retirement	
Clause 1		The Chief Minister may retire the Ombudsman on the grounds of incapacity but only with the Ombudsman’s consent. 	
Clause 140	Termination of appointment by Administrator	
	The Administrator must terminate the Ombudsman’s appointment if the Ombudsman is found guilty of an indictable offence, becomes bankrupt or engages in paid employment outside the duties of the Act without the Chief Minister’s approval.

A statement of the reasons for the termination must be tabled in the Legislative Assembly by the Chief Minister within six sitting days.	
Clause 141	Termination of appointment by Legislative Assembly after suspension	
	(1)	The Administrator may suspend the Ombudsman for misbehaviour, misconduct or physical or mental incapacity where the incapacity prevents the performance of the duties of office.
(2)	The Chief Minister must immediately give the Ombudsman a statement of reasons for the suspension.
(3)	The Chief Minister must table the statement in the Legislative Assembly within six sitting days, together with any written response by the Ombudsman.
(4)	Two-thirds of the Assembly must agree to the termination of the Ombudsman, by resolution, within six sitting days of the statement being presented. If such a resolution is passed, the Administrator must terminate the Ombudsman’s appointment.
(5)	The Ombudsman resumes duties if the Chief Minister fails to present the statement of reasons for the suspension or if the Legislative Assembly does not pass the resolution to terminate.
(6)	The total period of suspension is with pay.	
Clause 142	Appointment ceases on becoming candidate for election	
Clause 1		If an Ombudsman becomes a candidate for an election as a member of any Parliament or of a local government council (or equivalent), their appointment as Ombudsman ceases.	

Clause 143	Acting Ombudsman	
Clause 1		This clause allows for the appointment of an acting Ombudsman by the Chief Minister for no more than three months in any 12 month period.  Longer acting appointments can be made by the Chief Minister on the recommendation of the Assembly.

An Acting Ombudsman can be appointed during a vacancy in the office or for any periods when the Ombudsman is unable to perform the duties of office. Conditions of appointment (e.g. remuneration, expenses and allowances) are decided by the Chief Minister.	
Clause 144	Oath before taking office	
	The Administrator must administer an oath to the Ombudsman prior to the Ombudsman taking office. The oath must state that the Ombudsman will faithfully, impartially and truly exercise the powers and perform the functions of the office according to law.	
Subdivision 2 – 	Officers of Ombudsman’s Office	
Clause 145	Status	
Clause 1		A staff member of the Ombudsman’s Office must be a public sector employee.	
Clause 146	Officers not subject to outside direction	
	Staff employed in the Ombudsman’s Office are not subject to any direction, other than from within the office, relating to the way the Ombudsman's powers or functions are to be exercised or performed, such as how investigations are to be carried out, or as to what priority investigations are to be given.	
Subdivision 3 – 	Miscellaneous provisions	
Clause 147	Delegation	
Clause 1		This clause allows the Ombudsman to delegate to a person, in writing, any of the Ombudsman’s powers or functions under the Act.

The exceptions are the power to issue a notice to a public authority to stop an administrative action (refer clause 55) and the power to make arrangements with other jurisdictions (refer clause 148).	

Clause 148	Arrangements with other jurisdictions	
Clause 1		Arrangements can be made between Commonwealth, State and Territory Ombudsmen in writing with respect to investigations of administrative action of:
(a)	a public authority (of the Territory) or of an authority of a State or the Commonwealth;
(b)	an entity established or administered jointly by the Territory and the Commonwealth or the Territory and a State or the Territory, the Commonwealth and one or more States;
(c)	a jointly administered entity and a public authority or authority of a State or the Commonwealth.

The arrangements do not provide the Ombudsman with the power to perform a function of another jurisdiction’s Ombudsman except by way of delegation under an instrument under a law of the Commonwealth or a State or vis a vis under clause 147 of this Act.	
Clause 149	Validity of acts and decisions	
Clause 1		Validates anything done pursuant to the Act by a person whose appointment, as Ombudsman under 132 or as Acting Ombudsman under clause 1437, was ineffective or had ceased to be effective, or where the occasion to act had not arisen or had ceased.	
Division 2 – 	Agreement for dealing with police complaints	
Clause 150	Ombudsman and Commissioner may make agreement	
	Allows the Ombudsman and Commissioner to make an agreement about dealing with police complaints and outlines the matters that may be included in such an agreement including:
·	kinds of complaints to be dealt with under the police complaints resolution process;
·	conduct of, and reporting results of, that process;
·	kinds of complaints that require a report to parties following investigation by the Police Standards Command; and
·	other matters the Ombudsman and Commissioner consider appropriate for dealing with such complaints.

The police complaints agreement cannot override the Parts of the Act dealing with how the Police Standards Command or the Commissioner is to carry out functions under the Act.	
Clause 151	Tabling, publication and availability of agreement	
	The police complaints agreement must be:
·	tabled by the Chief Minister in the Legislative Assembly  within six sitting days;
·	published by the Commissioner in the Police Gazette, as soon as practicable after it is made, and in the Ombudsman’s annual report for the year in which it is made; and 
·	made available by the Commissioner and by the Ombudsman for public inspection, free of charge.	
Division 3 – 	Annual and other public reports	
Clause 152	Annual report	
Clause 1		The Ombudsman must provide an annual report to the Chief Minister, within 3 months after the end of each financial year, on the performance of the Ombudsman’s functions.  This is in line with clause 28 of the Public Sector Employment and Management Act.	
Clause 153	Report on Ombudsman’s initiative to Minister	
Clause 1		Allows the Ombudsman to give the Chief Minister a report regarding a particular complaint investigated by the Ombudsman on his/her own initiative or generally on the performance of the Ombudsman’s functions.	
Clause 154	Tabling of reports by Chief Minister	
	Within six days of receiving a report from the Ombudsman, the Chief Minister must table them within the Legislative Assembly. Those reports include:
·	annual reports (clause 153);
·	reports detailing failure of public authority, e.g. an Agency’s failure to comply with a direction to stop performing an administrative action (clause 55(5)(b));
·	reports detailing a lack of action by a public authority, e.g. an Agency or the Commissioner of Police, to implement recommendations (clauses 63(4) and 104(3)(b));
·	reports (under clause 154(a)) arising generally out of the performance of the Ombudsman’s functions; and
·	reports (under clause 154(b)) regarding a particular complaint, eg following up on previously reported agency action.	

Clause 155	Report on parliamentary reference	
	The Ombudsman must provide a report to the Speaker on the result of an investigation commenced by Parliamentary reference.

The Speaker must table the report in the Legislative Assembly within six sitting days.	
PART 10 – 	MISCELLANEOUS PROVISIONS	
Clause 156	Compliance with requirement as soon as practicable	
	A person must inform, or give documents, to another person where required by the Act to do so, as soon as practicable, unless another provision of the Act provides for another time frame.	
Clause 157	Compliance with requirement for informing complainant	
Clause 169		If a complaint is made anonymously, provisions requiring information or documents to be provided to the complainant do not apply.

Further, if the complaint is made by someone who is not the aggrieved person, it is sufficient to inform the person who made the complaint.	
Clause 158	Extension of period for compliance with notices	
	This clause allows the Ombudsman to grant an extension of time to a person who is required to do something under a notice given by the Ombudsman under the Act provided the person requests an extension in writing within the original time allowed. 	
Clause 159	Protection from liability – complainants and informants	
Clause 169		A person is protected from civil liability when making a complaint or giving information during a preliminary inquiry, conciliation, mediation, police complaints resolution process or investigation.  This protection extends to both administrative and police complaints.

The protection does not apply if the person made the complaint or provided the information in bad faith. Such a proceeding must not be brought without leave of the Supreme Court. 	

Clause 160	Protection from liability – persons administering Act	
	Protects an Official from civil or criminal liability when acting in good faith under the Act.

This provision is subject to and consistent with amendments to Part VIIA of the Police Administration Act and consequential amendments to other Acts in relation to Police liability.

The liability of the Territory is not affected by this protection.

The following terms are defined:
·	exercise of a power to include the purported exercise of power;
·	performance of a function to include the purported performance of the function; and
·	official include the Ombudsman, staff of the Ombudsman’s Office, a consultant or person engaged to act in an official capacity, the Commissioner of Police or a member of the Police Standards Command.	
Clause 161	Regulations	
	This is a standard regulation clause and sets out the usual matters about which the Administrator may make Regulations.

This includes those matters required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Subclause (2) lists specific matters which may be provided for in the Regulations, being witness allowances and travel expenses, fees payable and fines for offences against the Regulations to a certain limit ($5,500 for a natural person and $27,500 for a body corporate).

The Regulations may make different provisions in relation to different people or matters, or different classes of people or matters, and may apply differently because of stated exceptions or factors.	

PART 11 – REPEALS AND TRANSITIONAL MATTERS FOR OMBUDSMAN ACT 2008	
Division 1 – Preliminary matters	
Clause 162Definitions	
The terms ‘commencement date’ and ‘repealed Act’ are defined for the purposes of Part 11 only.

"Commencement date" is defined to mean the date on which this Act comes into operation in accordance with clause 2.

“Repealed Act" is defined to mean the Ombudsman (Northern Territory) Act as in force immediately before the commencement date, i.e. the current Act.	
Division 2 – Repeals	
Clause 163Repeal of Ombudsman legislation	
Repeals all former Northern Territory Ombudsman legislation listed in Schedule 1.	
Division 3 – Transitional matters	
Clause 164Ombudsman continues in office	
Clause 176	Provides that the current Ombudsman continues to hold office as the Ombudsman on the commencement of this Act, on the same conditions, until either the end of his/her term of appointment or another Ombudsman is appointed under this Act (prior to the end of his/her appointment).

The current appointment is due to expires August 2012.	
Clause 165 Actions before commencement date	
If an inquiry or investigation has already commenced under the current Act it must be completed under the current Act (as if it had not been repealed).

However, if an inquiry or investigation has not commenced (even if the matter complained about occurred before the commencement of the new Act), the complaint will be dealt with under the new Act.	

PART 12 – CONSEQUENTIAL AMENDMENTS OF LEGISLATION	
Division 1 – Health and Community Services Complaints Act	
Clause 166Act amended	
The Act amended is the Health and Community Services Complaints Act	
Clause 167Amendment of section 4 (interpretation)	
Omits the definition of Ombudsman in section 4(1).	
Clause 168Repeal and substitution of section 25A	
Section 25A to be repealed and substituted with:

‘S25A Referral of Complaints by Information Commissioner and Ombudsman’
This section applies if a complaint is referred to the Commissioner by:
·	the Information Commissioner under section 108 of the Information Act; or
·	the Ombudsman under clause 32 of the Ombudsman Act.
In both cases, the Commissioner must deal with the complaint as if it had been made under this Act.	
Division 2 – Information Act	
Clause 169Act amended	
The Act amended is the Information Act	
Clause 170 Amendment of section 4 (Definitions)	
Omits the definition of Ombudsman in section 4.	
Clause 171Amendment of section 49A (Information obtained or created because of investigation)	
Omits section 49A(b)(i)	

Clause 172	New section 49C	
	Inserts new section 49C before Part 4, Division 3 in the Information Act.

‘Information under Ombudsman Act’

Information is exempt under section 44 if it is:
(a)	contained in a complaint under the Ombudsman Act;
(b)	obtained and created under the Act in;
(i)	the making of preliminary inquiries;
(ii)	conduct of conciliation or mediation;
(iii)	conduct of police complaints resolution process;
(iv)	conduct of an investigation.

This amendment extends an existing exemption provided to the Ombudsman. Police who investigate complaints about police conduct on behalf of the Ombudsman will have the same exemption exempting information created or obtained during the course of the investigation from being subject to disclosure.	
Clause 173	Amendment of section 104 (Complaint about interference with privacy)	
	Section 104(3)(a) is to omit section 17B of the Ombudsman (Northern Territory) Act and replace it with section 32 ‘Referral of complaint to complaints entity’ of the Ombudsman Act 	
Clause 174	Amendment of section 108 (referral of complaints to Ombudsman, Health Complaints Commissioner or interstate Privacy Commissioner)	
	Section 108(1) is to omit reference to the Ombudsman (Northern Territory) Act and substitutes the reference to the Ombudsman Act.	
Division 3 – 	Police Administration Act	
Clause 175	Act amended	
	The Act amended is the Police Administration Act.	

Clause 176	Amendment of section 4 (interpretation)	
	Inserts definitions of Police Civil Employment Unit, Police Standards Command and Police Standards Command member.	
Clause 177	New Part II, Division 6	
	
This new part outlines:
·	the establishment of the Ethical Professional Standards Command of the NT Police Force;
·	the functions of the Police Standards Command;
·	the composition of the Police Standards Command;
·	the exercise of power or a function of members of the Police Standards Command; and
·	the power of the Commissioner to direct a person who is not a member to perform functions for the Police Standards Command.

Specifically it inserts new sections in the Police Administration Act as follows:
·	Section 34G establishes the Ethical Professional Standards Command of the NT Police Force.
·	Section 34H details that the Police Standards Command is to ensure the highest ethical and professional standards in the NT Police Force, to investigate and deal with complaints about police conduct and exercise functions for the discipline of members as directed by the Commissioner.
·	Section 34J provides that the officer in charge of the Police Standards command must be at the Commander level or above and must consist of members comprising public sector employee employed in the Police Civil Employment Unit.
·	Section 34K provides that in the exercise of a power or function under the Ombudsman Act that a member of the Police Standards Command, is only subject to the direction of the officer in charge or another member, or if the officer in charge, the Commissioner.	

Clause 177	·	Section 34L provides that the Commissioner may direct a member of the Police Standards Command to perform other functions and duties not related to their specific functions so long as it does not unreasonably interfere with the operations of the Police Standards Command. Additionally, the Commissioner cannot direct a member to investigate another for an alleged committing of an offence unless there are extenuating circumstances.
·	Section 34M provides that the Commissioner may direct another person (e.g. another member or a public sector employee) to investigate a police complaint and that person will be taken to be a member of the Police Standards Command for that purpose.	
Clause 178	Amendment of section 162 (Actions and prosecutions to be commenced within 2 months)	
	(1)	omits “magistrate” from section 162(6) and substitutes with “the Commissioner or a magistrate allows” to subsection 9;
(2)	omits all words from “The” to “apply” and substitutes “at any time before the end of the 6 month period, application may be made” to section162(7);
(3)	inserts section 7A and 7B after section162(7) relating to disciplinary action.
Section 7A provides that where an application is made, that it is made by a member of or above the rank of Commander, but where an extension of not more than 12 months is sought, that the application must be made to the Commissioner or a magistrate.
Section 7B provides that the Ombudsman can make an application to the Commissioner if through an investigation or police complaints process under the Ombudsman Act a breach of discipline is found. The application can only be made if the extension of time is not greater than 12 months.
(4)	Omits “magistrate” from section 162(9) and substitutes “Commissioner or a magistrate”
(5)	Omits “Commissioner” from section 162(9) and substitutes “the applicant”;
Omits “magistrate shall” from section 162(10) and substitutes “Commissioner or magistrate must”.	

Division 4  – Amendment of other Legislation	
Clause 179Legislation amended	
The legislation mentioned in Schedule 2 is amended to update references to the new Act.	
Division 5  – Expiry of Part	
Clause 180This is a general clause providing for the expiration of this part after its commencement.	
SCHEDULE 1	Repealed Acts	
Lists all previous Ombudsman legislation repealed by clause 164.	
SCHEDULE 2	Amendment of other laws	
Lists all other legislation to be amended to update references to the Ombudsman (Northern Territory) Act with reference to the new Act. Specific amendments are also made to:
·	Section 646(3)(a) of the Legal Profession Act to make it clear that the society is a public authority for the purposes of the Act.
·	Section 39(d) of the Prisons (Correctional Services) Act to omit “inquiry” and substitute it with “inquiry or investigation”.
·	Section 3(1) of the Telecommunications (Interception) Northern Territory Act to remove the definition of “Ombudsman”.
·	Section 163(3)(b) of the Youth Justice Act relating to complaints to omit the whole paragraph and substitute it with “Ombudsman”.