19 Evidence

(1)

Subject to the provisions of this section and of section 20, an Ombudsman may from time to time require any person who in his opinion is able to give any information relating to any matter that is being investigated by the Ombudsman to furnish to him any such information, and to produce any documents or papers or things which in the Ombudsman’s opinion relate to any such matter as aforesaid and which may be in the possession or under the control of that person. This subsection shall apply whether or not the person is an officer, employee, or member of any department or organisation, and whether or not such documents, papers, or things are in the custody or under the control of any department or organisation.

(2)

An Ombudsman may summon before him and examine on oath—

(a)

any person who is an officer or employee or member of any department or organisation named or specified in Schedule 1 and who in the Ombudsman’s opinion is able to give any such information as aforesaid; or

(b)

any complainant; or

(c)

with the prior approval of the Attorney-General in each case, any other person who in the Ombudsman’s opinion is able to give any such information—

and for that purpose may administer an oath. Every such examination by the Ombudsman shall be deemed to be a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

(3)

Subject to this section and to section 20(1), a person who is bound by the provisions of an enactment (being an Act or a legislative instrument within the meaning of the Legislation Act 2012 made by Order in Council) to maintain secrecy in relation to, or not to disclose, any matter may be required to supply any information to or answer any question put by an Ombudsman in relation to that matter, or to produce to an Ombudsman any document or paper or thing relating to it, even if compliance with that requirement would otherwise be in breach of the obligation of secrecy or non-disclosure.

(4)

Compliance with a requirement of an Ombudsman (being a requirement made pursuant to subsection (3)) is not a breach of the relevant obligation of secrecy or non-disclosure or of the enactment by which that obligation is imposed.

(5)

Every person shall have the same privileges in relation to the giving of information, the answering of questions, and the production of documents and papers and things as witnesses have in any court.

(5A)

In any investigation carried out under this Act pursuant to the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987, nothing in subsection (5) prevents an Ombudsman from—

(a)

requiring, under subsection (1), the furnishing of any information or the production of any document, paper, or thing for which privilege is claimed by any person; and

(b)

considering the information or inspecting any such document, paper, or thing—

for the purpose of determining whether the information, document, paper, or thing would be properly withheld, but not so as to give the Ombudsman any information, or enable the Ombudsman to make any use of the information, document, paper, or thing that he or she would not, apart from this subsection, be entitled to.

(5B)

On the production of any information, document, paper, or thing pursuant to subsection (5A), the Ombudsman—

(a)

must not release the information, document, paper, or thing, or any information derived from the document, paper, or thing to any person other than—

(i)

the producer of the information, document, paper, or thing; or

(ii)

any barrister or solicitor engaged by the Ombudsman for the purpose of providing legal advice as to whether the information, document, paper, or thing would be properly withheld by that producer under subsection (5); or

(iii)

a court:

(b)

may give his or her opinion only to the producer of the information, document, paper or thing and the complainant as to whether or not the claim of privilege is valid:

(c)

must not take into account the information or any information in the document, paper, or thing in forming any opinion concerning the release of any other information, unless the Ombudsman considers the claim of privilege is not valid and has notified the person concerned of that decision.

(6)

Except on the trial of any person for perjury within the meaning of the Crimes Act 1961 in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before an Ombudsman shall be admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before an Ombudsman shall be given against any person.

(7)

No person shall be liable to prosecution for an offence against any enactment, other than this Act, by reason of his compliance with any requirement of an Ombudsman under this section.

(8)

Where any person is required by an Ombudsman to attend before him for the purposes of this section, the person shall be entitled to the same fees, allowances, and expenses as if he were a witness in a court, and the provisions of any regulations in that behalf made under the Criminal Procedure Act 2011 and for the time being in force shall apply accordingly. For the purposes of this subsection an Ombudsman shall have the powers of a court under any such regulations to fix or disallow, in whole or in part, or increase the amounts payable thereunder.

Compare: 1962 No 10 s 16

Section 19(3): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Section 19(4): replaced, on 1 April 1987, by section 24(1) of the Official Information Amendment Act 1987 (1987 No 8).

Section 19(5A): inserted, on 17 September 1997, by section 2 of the Ombudsman Amendment Act 1997 (1997 No 72).

Section 19(5A): amended, on 15 December 2005, by section 3 of the Ombudsmen Amendment Act 2005 (2005 No 109).

Section 19(5B): inserted, on 17 September 1997, by section 2 of the Ombudsmen Amendment Act 1997 (1997 No 72).

Section 19(7): amended, on 1 July 1983, by section 3(2) of the Ombudsmen Amendment Act (No 2) 1982 (1982 No 164).

Section 19(8): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).