77 Procedure after investigation
  • (1) Where the Commissioner, after making any investigation under this Part, is of the opinion,—

    • (a) in the case of a complaint, that the complaint has substance, the Commissioner shall use his or her best endeavours to secure a settlement between any parties concerned and, if the Commissioner considers it appropriate, a satisfactory assurance against the repetition of any action that was the subject matter of the investigation or the doing of further actions of a similar kind by the person concerned; or

    • (b) in any other case, that the matter ought to be proceeded with, the Commissioner shall use his or her best endeavours to secure such an assurance as is referred to in paragraph (a).

    (2) If,—

    • (a) in the circumstances referred to in section 74, the Commissioner is unable to secure such a settlement and assurance as is referred to in that section; or

    • (b) in the circumstances referred to in paragraph (a) or paragraph (b) of subsection (1), the Commissioner is unable to secure such a settlement and assurance or, as the case may be, such an assurance as is referred to in either of those paragraphs; or

    • (c) in any case to which section 74 or subsection (1) applies, it appears that the action that was the subject matter of the complaint or, as the case may be, the investigation was done in contravention of such an assurance as is referred to in that section or that subsection, given on a previous occasion, or that any term of such a settlement as is referred to in that section or that subsection, reached on a previous occasion, has not been complied with,—

    the Commissioner may refer the matter to the Director of Human Rights Proceedings for the purpose of deciding whether proceedings under section 82 should be instituted against the person against whom the complaint was made or in respect of whom the investigation was conducted.

    (3) Where a matter is referred to the Director of Human Rights Proceedings under subsection (2), it shall, subject to section 82(3), be for the Director of Human Rights Proceedings to determine, in his or her discretion, both whether a matter justifies the institution of proceedings under section 82 and whether proceedings should be instituted under section 82 in respect of that matter.

    Compare: 1977 No 49 s 37; 1983 No 56 s 11

    Section 77(2): amended, on 22 October 2003, by section 3 of the Privacy Amendment Act 2003 (2003 No 94).

    Section 77(3): amended, on 22 October 2003, by section 3 of the Privacy Amendment Act 2003 (2003 No 94).