Functions of Ombudsmen

13 Functions of Ombudsmen

(1)

Subject to section 14, it shall be a function of the Ombudsmen to investigate any decision or recommendation made, or any act done or omitted, whether before or after the passing of this Act, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by any of the departments or organisations named or specified in Parts 1 and 2 of Schedule 1, or by any committee (other than a committee of the whole) or subcommittee of any organisation named or specified in Part 3 of Schedule 1, or by any officer, employee, or member of any such department or organisation in his capacity as such officer, employee, or member.

(2)

Subject to section 14, and without limiting the generality of subsection (1), it is hereby declared that the power conferred by that subsection includes the power to investigate a recommendation made, whether before or after the passing of this Act, by any such department, organisation, committee, subcommittee, officer, employee, or member to a Minister of the Crown or to any organisation named or specified in Part 3 of Schedule 1, as the case may be.

(3)

Each Ombudsman may make any such investigation either on a complaint made to an Ombudsman by any person or of his own motion; and where a complaint is made he may investigate any decision, recommendation, act, or omission to which the foregoing provisions of this section relate, notwithstanding that the complaint may not appear to relate to that decision, recommendation, act, or omission.

(4)

Without limiting the foregoing provisions of this section, it is hereby declared that any committee of the House of Representatives may at any time refer to an Ombudsman, for investigation and report by an Ombudsman, any petition that is before that committee for consideration, or any matter to which the petition relates. In any such case, an Ombudsman shall, subject to any special directions of the committee, investigate the matters so referred, so far as they are within his jurisdiction, and make such report to the committee as he thinks fit. Nothing in section 17 or section 22 or section 24 shall apply in respect of any investigation or report made under this subsection.

(5)

Without limiting the foregoing provisions of this section, it is hereby declared that at any time the Prime Minister may, with the consent of the Chief Ombudsman, refer to an Ombudsman for investigation and report any matter, other than a matter concerning a judicial proceeding, which the Prime Minister considers should be investigated by an Ombudsman. Where a matter is referred to an Ombudsman pursuant to this subsection, he shall, notwithstanding anything to the contrary in this Act, forthwith investigate that matter and report thereon to the Prime Minister, and may thereafter make such report to Parliament on the matter as he thinks fit. Nothing in section 22 shall apply in respect of any investigation or report made under this subsection.

(6)

The powers conferred on Ombudsmen by this Act may be exercised notwithstanding any provision in any enactment to the effect that any such decision, recommendation, act, or omission shall be final, or that no appeal shall lie in respect thereof, or that no proceeding or decision of the person or organisation whose decision, recommendation, act, or omission it is shall be challenged, reviewed, quashed, or called in question.

(7)

Nothing in this Act shall authorise an Ombudsman to investigate—

(a)

any decision, recommendation, act, or omission in respect of which there is, under the provisions of any Act or regulation, a right of appeal or objection, or a right to apply for a review, available to the complainant, on the merits of the case, to any court, or to any tribunal constituted by or under any enactment, whether or not that right of appeal or objection or application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired:

provided that the Ombudsman may conduct an investigation (not being an investigation relating to any decision, recommendation, act, or omission to which any other paragraph of this subsection applies) notwithstanding that the complainant has or had such right if by reason of special circumstances it would be unreasonable to expect him to resort or have resorted to it:

(b)

any decision, recommendation, act, or omission of any person in his capacity as a trustee within the meaning of the Trustee Act 1956:

(c)

any decision, recommendation, act, or omission of any person acting as legal adviser to the Crown pursuant to the rules for the time being approved by the Government for the conduct of Crown legal business, or acting as counsel for the Crown in relation to any proceedings:

(d)

any decision, recommendation, act, or omission of any constable, other than any matter relating to the terms and conditions of service of any person as a constable.

(8)

Nothing in this Act shall authorise an Ombudsman to investigate any matter relating to any person who is or was a member of or provisional entrant to the New Zealand Naval Forces, the New Zealand Army, or the Royal New Zealand Air Force, so far as the matter relates to—

(a)

the terms and conditions of his service as such member or entrant; or

(b)

any order, command, decision, penalty, or punishment given to or affecting him in his capacity as such member or entrant.

(9)

If any question arises whether an Ombudsman has jurisdiction to investigate any case or class of cases under this Act, he may, if he thinks fit, apply to the High Court for a declaratory order determining the question in accordance with the Declaratory Judgments Act 1908, and the provisions of that Act shall extend and apply accordingly.

Compare: 1962 No 10 s 11; 1968 No 138 s 2

Section 13(7)(d): replaced, on 1 April 1989, by section 39(1) of the Independent Police Conduct Authority Act 1988 (1988 No 2).

Section 13(7)(d): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 13(9): amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).