This Act may be cited as the Parliamentary Commissioner (Ombudsman) Act 1962.

There shall be appointed, as an officer of Parliament, a Commissioner for investigations, to be called the Ombudsman.

Subject to the provisions of section 6 of this Act, the Commissioner shall be appointed by the Governor-General on the recommendation of the House of Representatives.

No person shall be deemed to be employed in the service of Her Majesty for the purposes of the Public Service Act 1912 or the Superannuation Act 1956 by reason of his appointment as Commissioner.

The Commissioner shall not be capable of being a member of Parliament, and shall not, without the approval of the Prime Minister in each particular case, hold any office of trust or profit, other than his office as Commissioner, or engage in any occupation for reward outside the duties of his office.

The recommendation for the appointment of the Commissioner shall be made in the first or second session of every Parliament.

Unless his office sooner becomes vacant, every person appointed as Commissioner shall hold office until his successor is appointed. Every such person may from time to time be reappointed.

The Commissioner may at any time resign his office by writing addressed to the Speaker of the House of Representatives, or to the Prime Minister if there is no Speaker or the Speaker is absent from New Zealand.

The Commissioner may at any time be removed or suspended from his office by the Governor-General, upon an address from the House of Representatives, for disability, bankruptcy, neglect of duty, or misconduct.

At any time when Parliament is not in session, the Commissioner may be suspended from his office by the Governor-General in Council for disability, bankruptcy, neglect of duty, or misconduct proved to the satisfaction of the Governor-General; but any such suspension shall not continue in force beyond the end of the next ensuing session of Parliament.

If the Commissioner dies, or retires, or resigns, or is removed from office, the vacancy thereby created shall be filled in accordance with this section.

If any vacancy in the office of Commissioner occurs at any time while Parliament is in session, it shall be filled by the appointment of a Commissioner by the Governor-General on the recommendation of the House of Representatives:

Provided that if the vacancy occurs less than two months before the close of that session and no such recommendation is made in that session, the provisions of subsection (3) of this section shall apply as if the vacancy had occurred while Parliament was not in session.

If any such vacancy occurs at any time while Parliament is not in session, the following provisions shall apply:

Subject to the provisions of subsection (2) of this section, there shall be paid to the Commissioner out of the Consolidated Fund, without further appropriation than this section, a salary at a rate to be fixed by the Governor-General by Order in Council.

Whenever a Royal Commission is appointed to make recommendations for the purposes of section 27 of the Civil List Act 1950 (which relates to the fixing of salaries and allowances payable under Parts II, III, and IV of that Act), that Commission shall also inquire into and report upon the salary of the Commissioner under this Act, and may make such recommendation as it thinks fit thereon. On any such recommendation, the Governor-General may from time to time, by Order in Council, fix the salary of the Commissioner, but so that the salary shall be at a rate not less than that fixed under subsection (1) of this section. The provisions of subsection (2) of the said section 27 shall apply to any Order in Council made under this subsection; and while the Order in Council is in force the salary fixed thereunder shall be payable to the Commissioner in every year out of the Consolidated Fund without further appropriation than this section, instead of the salary fixed under subsection (1) of this section.

There shall be paid to the Commissioner, in repect of time spent in travelling in the exercise of his functions, travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly as if the Commissioner were a member of a statutory Board and the travelling were in the service of a statutory Board.

Before entering upon the exercise of the duties of his office the Commissioner shall take an oath that he will faithfully and impartially perform the duties of his office, and that he will not, except in accordance with section 18 of this Act, divulge any information received by him under this Act.

The oath shall be administered by the Speaker or the Clerk of the House of Representatives.

Subject to the provisions of this section, the Commissioner may appoint such officers and employees as may be necessary for the efficient carrying out of his functions under this Act.

The number of persons that may be appointed under this section, whether generally or in respect of any specified duties or class of duties, shall from time to time be determined by the Prime Minister.

The salaries of persons appointed under this section, and the terms and conditions of their appointments, shall be such as are approved by the Minister of Finance.

No person shall be deemed to be employed in the service of Her Majesty for the purposes of the Public Service Act 1912 or the Superannuation Act 1956 by reason of his appointment under this section.

There may from time to time be paid sums by way of contributions or subsidies to the National Provident Fund or any Fund or scheme approved by the Governor-General in Council for the purpose of providing superannuation or retiring allowances for the Commissioner and any officer or employee appointed under this Act.

The principal function of the Commissioner shall be to investigate any decision or recommendation made (including any recommendation made to a Minister of the Crown), or any act done or omitted, 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 in the Schedule to this Act, or by any officer, employee, or member thereof in the exercise of any power or function conferred on him by any enactment.

The Commissioner may make any such investigation either on a complaint made to him by any person or of his own motion; and where a complaint is so made he may commence any such investigation notwithstanding that the complaint may not on its face be against any such decision, recommendation, or act as aforesaid.

Without limiting the provisions of subsection (1) of this section, it is hereby declared that any Committee of the House of Representatives may at any time refer to the Commissioner, for investigation and report by him, any petition that is before that Committee for consideration, or any matter to which the petition relates. In any such case, the Commissioner shall, subject to any special directions of the Committee, investigate the matters so referred to him, so far as they are within his jurisdiction, and make such report to the Committee as he thinks fit. Nothing in section 14 or section 19 or section 20 of this Act shall apply in respect of any investigation or report made under this subsection.

The powers conferred on the Commissioner 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.

Nothing in this Act shall authorise the Commissioner to investigate—

Nothing in this Act shall authorise the Commissioner 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—

If any question arises whether the Commissioner has jurisdiction to investigate any case or class of cases under this Act, he may, if he thinks fit, apply to the Supreme 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.

The House of Representatives may from time to time, if it thinks fit, make general rules for the guidance of the Commissioner in the exercise of his functions, and may at any time in like manner revoke or vary any such rules.

Any such rules may authorise the Commissioner from time to time, in the public interest or in the interests of any person or Department or organisation, to publish reports relating generally to the exercise of his functions under this Act or to any particular case or cases investigated by him, whether or not the matters to be dealt with in any such report have been the subject of a report to Parliament under this Act.

All rules made under this section shall be printed and published in accordance with the Regulations Act 1936.

Every complaint to the Commissioner shall be made in writing.

Notwithstanding any provision in any enactment, where any letter written by any person in custody on a charge or after conviction of any offence, or by any inmate of any institution within the meaning of the Mental Health Act 1911, is addressed to the Commissioner it shall be immediately forwarded, unopened, to the Commissioner by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which he is an inmate.

On every complaint to the Commissioner there shall be paid to the Commissioner, on behalf of the Crown, a fee of one pound, unless, having regard to any special circumstances, the Commissioner directs that no fee shall be payable.

The Commissioner shall cause all fees paid to him under this section to be paid into the Public Account.

If in the course of the investigation of any complaint within his jurisdiction it appears to the Commissioner—

he may in his discretion refuse to investigate the matter further.

Without limiting the generality of the powers conferred on the Commissioner by this Act, it is hereby declared that the Commissioner may in his discretion decide not to investigate, or, as the case may require, not to further investigate, any complaint if it relates to any decision, recommendation, act, or omission of which the complainant has had knowledge for more than twelve months before the complaint is received by the Commissioner, or if in his opinion—

In any case where the Commissioner decides not to investigate or further investigate a complaint he shall inform the complainant of that decision, and may if he thinks fit state his reasons therefor, and may also, if he thinks fit, direct that the fee paid by the complainant under this Act be refunded to him.

Before investigating any matter under this Act, the Commissioner shall inform the Permanent Head of the Department affected, or, as the case may require, the organisation affected, of his intention to make the investigation.

Every investigation by the Commissioner under this Act shall be conducted in private.

The Commissioner may hear or obtain information from such persons as he thinks fit, and may make such inquiries as he thinks fit. It shall not be necessary for the Commissioner to hold any hearing, and no person shall be entitled as of right to be heard by the Commissioner:

Provided that if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds for his making any report or recommendation that may adversely affect any Department or organisation or person, he shall give to that Department or organisation or person an opportunity to be heard.

The Commissioner may in his discretion, at any time during or after any investigation, consult any Minister who is concerned in the matter of the investigation.

On the request of any Minister in relation to any investigation, or in any case where any investigation relates to any recommendation made to a Minister, the Commissioner shall consult that Minister after making the investigation and before forming a final opinion on any of the matters referred to in subsection (1) or subsection (2) of section 19 of this Act.

If, during or after any investigation, the Commissioner is of opinion that there is evidence of any breach of duty or misconduct on the part of any officer or employee of any Department or organisation, he shall refer the matter to the appropriate authority.

Subject to the provisions of this Act and of any rules made for the guidance of the Commissioner by the House of Representatives and for the time being in force, the Commissioner may regulate his procedure in such manner as he thinks fit.

Subject to the provisions of this section and of section 17 of this Act, the Commissioner 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 Commissioner to furnish to him any such information, and to produce any documents or papers or things which in the Commissioner’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.

The Commissioner may summon before him and examine on oath—

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

Subject to the provisions of subsection (4) of this section, no person who is bound by the provisions of any enactment, other than the Public Service Act 1912 and the Official Secrets Act 1951, to maintain secrecy in relation to, or not to disclose, any matter shall be required to supply any information to or answer any question put by the Commissioner in relation to that matter, or to produce to the Commissioner any document or paper or thing relating to it, if compliance with that requirement would be in breach of the obligation of secrecy or non-disclosure.

With the previous consent in writing of any complainant, any person to whom subsection (3) of this section applies may be required by the Commissioner to supply information or answer any question or produce any document or paper or thing relating only to the complainant, and it shall be the duty of the person to comply with that requirement.

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.

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 the Commissioner 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 the Commissioner shall be given against any person.

No person shall be liable to prosecution for an offence against the Official Secrets Act 1951 or any enactment, other than this Act, by reason of his compliance with any requirement of the Commissioner under this section.

Where any person is required by the Commissioner 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 Summary Proceedings Act 1957 and for the time being in force shall apply accordingly. For the purposes of this subsection the Commissioner 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.

Where the Attorney-General certifies that the giving of any information or the answering of any question or the production of any document or paper or thing—

the Commissioner shall not require the information or answer to be given or, as the case may be, the document or paper or thing to be produced.

Subject to the provisions of subsection (1) of this section, the rule of law which authorises or requires the withholding of any document or paper, or the refusal to answer any question, on the ground that the disclosure of the document or paper or the answering of the question would be injurious to the public interest shall not apply in respect of any investigation by or proceedings before the Commissioner.

The Commissioner and every person holding any office or appointment under him shall be deemed for the purposes of the Official Secrets Act 1951 to be persons holding office under Her Majesty.

The Commissioner and every such person as aforesaid shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions.

Every person holding any office or appointment under the Commissioner shall, before he begins to perform any official duty under this Act, take an oath, to be administered by the Commissioner, that he will not divulge any information received by him under this Act except for the purpose of giving effect to this Act.

Notwithstanding anything in the foregoing provisions of this section, the Commissioner may disclose in any report made by him under this Act such matters as in his opinion ought to be disclosed in order to establish grounds for his conclusions and recommendations. The power conferred by this subsection shall not extend to any matter that might prejudice the security, defence, or international relations of New Zealand (including New Zealand’s relations with the Government of any other country or with any international organisation) or the investigation or detection of offences, or that might involve the disclosure of the deliberations of Cabinet.

The provisions of this section shall apply in every case where, after making any investigation under this Act, the Commissioner is of opinion that the decision, recommendation, act, or omission which was the subject-matter of the investigation—

The provisions of this section shall also apply in any case where the Commissioner is of opinion that in the making of the decision or recommendation, or in the doing or omission of the act, a discretionary power has been exercised for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations, or that, in the case of a decision made in the exercise of any discretionary power, reasons should have been given for the decision.

If in any case to which this section applies the Commissioner is of opinion—

the Commissioner shall report his opinion, and his reasons therefor, to the appropriate Department or organisation, and may make such recommendations as he thinks fit. In any such case he may request the Department or organisation to notify him, within a specified time, of the steps (if any) that it proposes to take to give effect to his recommendations. The Commissioner shall also send a copy of his report and recommendations to the Minister concerned.

If within a reasonable time after the report is made no action is taken which seems to the Commissioner to be adequate and appropriate, the Commissioner, in his discretion, after considering the comments (if any) made by or on behalf of any Department or organisation affected, may send a copy of the report and recommendations to the Prime Minister, and may thereafter make such report to Parliament on the matter as he thinks fit.

The Commissioner shall attach to every report sent or made under subsection (4) of this section a copy of any comments made by or on behalf of the Department or organisation affected.

Notwithstanding anything in this section, the Commissioner shall not, in any report made under this Act, make any comment that is adverse to any person unless the person has been given an opportunity to be heard.

Where, on any investigation following a complaint, the Commissioner makes a recommendation under subsection (3) of section 19 of this Act, and no action which seems to the Commissioner to be adequate and appropriate is taken thereon within a reasonable time, the Commissioner shall inform the complainant of his recommendation, and may make such comments on the matter as he thinks fit.

The Commissioner shall in any case inform the complainant, in such manner and at such time as he thinks proper, of the result of the investigation.

No proceeding of the Commissioner shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Commissioner shall be liable to be challenged, reviewed, quashed, or called in question in any Court.

Except in the case of proceedings for an offence against the Official Secrets Act 1951,—

Anything said or any information supplied or any document, paper, or thing produced by any person in the course of any inquiry by or proceedings before the Commissioner under this Act shall be privileged in the same manner as if the inquiry or proceedings were proceedings in a Court.

For the purposes of clause 5 of the First Schedule to the Defamation Act 1954, any report made by the Commissioner under this Act shall be deemed to be an official report made by a person holding an inquiry under the authority of the legislature of New Zealand.

For the purposes of this Act, but subject to the provisions of this section, the Commissioner may at any time enter upon any premises occupied by any of the Departments or organisations named in the Schedule to this Act and inspect the premises and, subject to the provisions of sections 16 and 17 of this Act, carry out therein any investigation that is within his jurisdiction.

Before entering upon any such premises the Commissioner shall notify the Permanent Head of the Department or, as the case may require, the organisation by which the premises are occupied.

The Attorney-General may from time to time by notice to the Commissioner exclude the application of subsection (1) of this section to any specified premises or class of premises, if he is satisfied that the exercise of the power conferred by this section might prejudice the security, defence, or international relations of New Zealand, including New Zealand’s relations with the Government of any other country or with any international organisation.

With the prior approval in each case of the Prime Minister, the Commissioner may from time to time, by writing under his hand, delegate to any person holding any office under him any of his powers under this Act, except this power of delegation and the power to make any report under this Act.

Any delegation under this section may be made to a specified person or to the holder for the time being of a specified office or to the holders of offices of a specified class.

Every delegation under this section shall be revocable at will, and no such delegation shall prevent the exercise of any power by the Commissioner.

Any such delegation may be made subject to such restrictions and conditions as the Commissioner thinks fit, and may be made either generally or in relation to any particular case or class of cases.

Until any such delegation is revoked, it shall continue in force according to its tenor. In the event of the Commissioner by whom it was made ceasing to hold office, it shall continue to have effect as if made by his successor.

Any person purporting to exercise any power of the Commissioner by virtue of a delegation under this section shall, when required to do so, produce evidence of his authority to exercise the power.

Without limiting his right to report at any other time, but subject to the provisions of subsection (6) of section 19 of this Act and to any rules for the guidance of the Commissioner made by the House of Representatives and for the time being in force, the Commissioner shall in each year make a report to Parliament on the exercise of his functions under this Act.

Every person commits an offence against this Act and is liable on summary conviction to a fine not exceeding fifty pounds who—

Except as otherwise provided in this Act, all salaries and allowances and other expenditure payable or incurred under or in the administration of this Act shall be payable out of money to be appropriated by Parliament for the purpose.

Where any Department or organisation named in the Schedule to this Act is abolished, or its name is altered, or where any new Department of State is created, the Governor-General may by Order in Council make such amendments to the said Schedule as may be necessary to give effect to the abolition or alteration, or to include the name of the new Department therein.

The provisions of this Act are in addition to the provisions of any other enactment or any rule of law under which any remedy or right of appeal or objection is provided for any person or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Act shall limit or affect any such remedy or right of appeal or objection or procedure as aforesaid.