QQ v NSW Ombudsman (EOD)

[2012] NSWADTAP 34

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	QQ v NSW Ombudsman (EOD) [2012] NSWADTAP 34
Hearing dates:	On the papers
Decision date:	27 September 2012
Before:	Judge K P O'Connor, President A Scahill, Judicial Member M Bolt, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	EQUAL OPPORTUNITY - Complaint against Ombudsman - Statutory Immunity from Suit - Scope and Meaning - Appeal by Complainant dismissed - Ombudsman Act 1974, s 35A
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 Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575; [1999] HCA 45 QQ v NSW Ombudsman [2012] NSWADT 109 Rae v NSW Ombudsman, unreported, 18 March 2010 (ADT Equal Opportunity Division) The Ombudsman v Koopman [2003] NSWCA 277; (2003) 58 NSWLR 182 The Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114
Category:	Principal judgment
Parties:	QQ (Appellant) NSW Ombudsman (Respondent)
Representation:	In person (Appellant) T Lowe, NSW Ombudsman (Respondent)
File Number(s):	129018
Decision under appeal	Citation: QQ v NSW Ombudsman [2012] NSWADT 109 Date of Decision: 2012-06-05 00:00:00 Before: Equal Opportunity Division File Number(s): 121007

REASON FOR DECISION

1. The appellant is a former police officer. He was retired on medical grounds on 20 March 2011. He had been the subject of a number of complaints that were investigated by the Commissioner of Police within the framework of the Police Act 1990 (Police Act), Part 8A. They resulted in a number of adverse findings. He complained about the conduct and findings in four of the investigations to the Ombudsman. The Ombudsman has various functions under Part 8A of the Police Act.

1. The appellant was dissatisfied with the Ombudsman's response, and lodged pursuant to the Anti-Discrimination Act 1977 (AD Act) a complaint of disability discrimination with the President of the Anti-Discrimination Board.

1. In that regard, the appellant expressed concern over the contents of a letter in reply dated 12 July 2011 in which the Ombudsman had, after giving a response to the appellant's representations, said in explanation of his office's decision not to consider these matters any further: 'In my view, there would be little utility in revisiting complaints in which you are the subject officer given that you are no longer a police officer ... I do not propose to take any further action in this matter'. The appellant contended that he was being treated differently to a serving or retired officer who did not have a disability.

1. The President undertook an investigation, and found that the complaint lacked substance. The Ombudsman acknowledged that his office in responding to the appellant's representations was engaged in the provision of a 'service' within the meaning of the AD Act, and that the appellant at the material times could be said to have a disability of the kind protected by the Act.…