QQ v NSW Ombudsman

[2012] NSWADT 109

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	QQ v NSW Ombudsman [2012] NSWADT 109
Hearing dates:	On the papers
Decision date:	05 June 2012
Before:	Magistrate N Hennessy, Deputy President Ms Z Antonios, Non-Judicial Member Ms E Hayes, Non-Judicial Member
Decision:	The Tribunal has no jurisdiction to entertain QQ's application for leave to proceed.
Catchwords:	EQUAL OPPORTUNITY - complaint of disability discrimination in the provision of services - jurisdiction - application of s 35A of Ombudsman Act 1974 to conduct of Ombudsman in reviewing decision made by him under Part 8A of Police Act 1990
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Ombudsman Act 1974 Police Act 1990
Cases Cited:	Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 Micro Focus (US) Inc v State of New South Wales [2011] FCA 787 Rae v NSW Ombudsman (unreported ex tempore decision of Patten DP on 18 March 2010) The Ombudsman v Laughton (2005) 64 NSWLR 114
Category:	Principal judgment
Parties:	QQ NSW Ombudsman
Representation:	Counsel S Free (Respondent) QQ (Applicant in person)
File Number(s):	121007

REasons for decision

Introduction

1. The issue in these proceedings is whether the Tribunal has jurisdiction to entertain a complaint of disability discrimination by QQ against the Ombudsman. The Ombudsman submitted that the Tribunal does not have jurisdiction because s 35A of the Ombudsman Act 1974 (Ombudsman Act) prevents the Ombudsman from being liable to any civil proceedings in respect of acts done "for the purpose of executing" any Act, including the Police Act 1990 (Police Act). Before such proceedings can be brought a person must obtain leave from the Supreme Court.

1. QQ submitted that the Tribunal has jurisdiction to entertain his application and leave from the Supreme Court is not required.

1. The issue of jurisdiction has been determined 'on the papers': Administrative Decisions Tribunal Act 1997, (ADT Act) s 76.

Background

1. On 29 August 2011, QQ lodged a complaint of disability discrimination with the President of the Anti-Discrimination Board. The basis for that complaint was that the Ombudsman had declined to provide certain services to QQ on the ground of his disability. The President of the ADB declined the complaint as lacking in substance. At the request of QQ, the complaint was referred to the Tribunal. Before a declined complaint can proceed, the Tribunal must grant leave: Anti-Discrimination Act 1977, (AD Act) s 96. However, before determining whether leave should be granted, the threshold question of whether the Tribunal has jurisdiction to entertain the complaint must be determined.

1. When QQ was a police officer, he was the subject of various complaints. Those complaints were investigated by the Commissioner of Police, as required by Part 8A of the Police Act, and reports were prepared. As required by s 150 of the Police Act, the Commissioner provided the Ombudsman with copies of his reports into the complaints. The Ombudsman has various powers under Part 8A of the Police Act to oversee the investigation and determination of complaints by the Commissioner of Police. For example, the Ombudsman may ask the Commissioner for further information about the investigation of the complaint; request that the Commissioner further investigate the complaint or request that the Commissioner review the decision he makes following the investigation.

1. In relation to the complaints about QQ, the Ombudsman, acting pursuant to the provisions in Part 8A, considered the report that the Commissioner of Police had provided and was satisfied that the Commissioner had properly dealt with the complaints. QQ wrote to the Ombudsman requesting that the Ombudsman review his decision. While there is no legislative provision empowering the Ombudsman to review his decision, the Ombudsman has a policy in relation to requests for reviews of decisions - the "Request for Review of Decision Policy" (the Policy). In accordance with that Policy, the Ombudsman reviewed each of the complaints made about QQ and the manner in which the Commissioner of Police had investigated and determined those complaints.

1. By letter dated 12 July 2011, the Ombudsman advised QQ that, following that review, he was satisfied that the complaints had been properly dealt with by the Commissioner of Police and properly overseen by his office. QQ highlighted the following passage from that letter:

In my view, there would be little utility in re visiting complaints in which you are a subject officer given that you are no longer a police officer . . . I do not propose any further action in this matter.

1. The Ombudsman's decision to take no further action following the review under the Policy was the subject of QQ's complaint to the President of the Anti-Discrimination Board and the subject of the proceedings he seeks to bring in the Tribunal. QQ submitted that because he was no longer a police officer because of his medical condition, his disability was inextricably linked to his status of no longer being a police officer. Consequently, in breach of the AD Act, the Ombudsman had treated him less favourably than he would have treated a person who did not have such a disability.

Tribunal's jurisdiction

Section 35A

1. The provision on which the Ombudsman relies to submit that the Tribunal has no jurisdiction to entertain QQ's complaint is s 35A of the Ombudsman Act:

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.

Issue

1. The issue of jurisdiction depends on whether the conduct of the Ombudsman in reviewing his decision and deciding not to take any further action was an act done "for the purpose of executing" the Police Act. The parties impliedly or expressly conceded that no other matter in s 35A was in issue. The Ombudsman accepted that the discrimination complaint was a civil proceeding within the meaning of that term in s 35A. QQ did not rely on the exception in s 35A relating to acting in bad faith.

Is the conduct an act done "for the purpose of executing" the Police Act?

1. QQ's case was that the conduct of the Ombudsman in reviewing his oversight of the complaints against QQ by the Commissioner of Police, and deciding to take no further action, was not an act done "for the purpose of executing" the Police Act. It was said to be an act done pursuant to an internal Policy which has no legislative basis.

1. It is correct that the Ombudsman review powers have no legislative basis and that the review was conducted pursuant to the Policy. In that sense, the circumstances of this case are distinguishable from those in Rae v NSW Ombudsman (unreported ex tempore decision of Patten DP on 18 March 2010). In that case, the Tribunal found that s 35A applied because the conduct about which Mr Rae complained was the exercise of the Ombudsman's powers under Part 8A of the Police Act. It was not about the Ombudsman's conduct in reviewing a decision made under Part 8A.

1. QQ also submitted that because the Ombudsman was making a decision pursuant to an internal policy, it was an act of internal administration and therefore not protected by s 35A. The Supreme Court has held that an act of internal administration, such as a decision as to whether to employ a person as a member of staff, is not protected: The Ombudsman v Laughton (2005) 64 NSWLR 114. In that case, Spigelman CJ held at [25] that the purpose of s 35A was to "protect from challenge the substantive conduct of the Ombudsman, namely the investigations and reports and other such functions for which the Ombudsman Act and other Acts provide."

1. Handley JA agreed saying at [38] that:

In my view the words "for the purpose of executing this or any other Act" refer only to what might be called the external exercise or the adverse exercise of powers conferred by the Act in the course of obtaining information or otherwise for the purpose of conducting an authorised investigation, and do not refer to matters of internal administration.

1. The present case does not involve any matter concerning the internal administration of the Ombudsman's Office. It concerns the "substantive conduct" of the Ombudsman, namely the external exercise of his powers under the Police Act.

1. The remaining question is whether the Ombudsman's reviews are sufficiently connected with the exercise of his powers under Part 8A to be regarded as being done "for the purpose of executing" the Police Act. Immunity provisions, such as s 35A, should be construed strictly: Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 at 116. In that case at 117, Kitto J held in relation to a provision comparable to s 35A, that the conduct must be the "very thing, or an integral part of or step in the very thing" which the Act authorises or requires to be done. It cannot be an act which was "merely incidental to, or done by the way in the course of, the exercise of a power."

1. An example of an act which was considered too remote from the "execution of an Act" to come within s 35A were allegations of a breach of copyright. In Micro Focus (US) Inc v State of New South Wales [2011] FCA 787, it was alleged that the Ombudsman had breached copyright in relation to a computer software program which allowed the Ombudsman's staff to access the Computerised Operational Policing System (COPS) data base. The Ombudsman submitted that the data base was accessed for the purpose of exercising functions conferred on him and his staff by Part 8A of the Police Act. Jagot J decided that the software allowed the Ombudsman and his officers to effectively discharge their functions under the Police Act. However, the fact that it provided an effective and efficient means for the Ombudsman and his officers to discharge their statutory functions under Part 8A was not sufficient.

1. The present case is not analogous to the circumstances in Micro Focus. In this case, the Ombudsman's conduct was reviewing a decision which had previously been made under Part 8A. The sole subject matter of the Ombudsman's review was the adequacy of the conduct of his officers in the exercise of functions under that Part of the Police Act. The "review" of the Ombudsman's conduct was, in substance, a consideration of whether any of the functions under Part 8A should be re-visited or re-exercised. To use Kitto J's words, it was an integral part of the very thing which the Act authorised or required to be done. It was not merely incidental to the exercise of the powers in Part 8A.

1. For these reasons, s 35A of the Ombudsman Act applies to the circumstances of this case and, because leave of the Supreme Court has not been obtained, the Tribunal has no jurisdiction.

Order

The Tribunal has no jurisdiction to entertain QQ's application for leave to proceed.

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Decision last updated: 05 June 2012