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 1The 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. 2The 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. 3In 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. 4The 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. However, he denied that his office's conduct in dealing with the appellant's representations amounted to unlawful discrimination within the meaning of the Act. 5At the appellant's request the complaint was referred to the Tribunal, as permitted by the AD Act, s 93A(1). To proceed further, the Tribunal must give leave: s 96(1). The Tribunal declined to grant leave: QQ v NSW Ombudsman [2012] NSWADT 109 (5 June 2012). 6It did so on the ground that it had no power to entertain the referral let alone consider the leave question, because of a statutory immunity afforded to the Ombudsman. Section 35A of the Ombudsman Act 1974 (Ombudsman Act) provides: 35A Immunity of Ombudsman and others (1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith. 7Normally, an appeal may be made as of right against a decision of the Equal Opportunity Division in relation to a question of law, and, by leave, may be extended to the merits (AD Act, s 115; Administrative Decisions Tribunal Act 1997 (ADT Act), Chapter 7, Part 1, esp ss 112, 113). 8The notice of appeal was lodged on 3 July 2012. At a telephone directions hearing on 19 July 2012, the appellant and the respondent agreed to the appeal being determined 'on the papers', as had occurred below (see ADT Act, s 76). 9On that occasion a further preliminary issue was not canvassed, and has not been raised in the respondent's notice in reply. Section 96(4) of the AD Act provides that: A decision of the Tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to the Appeal Panel under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997. 10We have not received submissions on the meaning to be given to this provision. We have, subject to any further argument on a future occasion, adopted the view that the provision does not extend to a decision to decline to hear a leave application on a preliminary ground, here the taking of a jurisdictional objection (or as the respondent's submissions below put it, an objection to the 'competence' of the Tribunal). 11Accordingly we have proceeded on the basis that the decision, being one as to jurisdiction, falls within the field of an 'ancillary function' for the purposes of the ADT Act's machinery provisions relating to constitution of panels and the conduct of appeals (see s 24A(1), and s 113(2E)). However, the discretion given by s 113(2E) to constitute the Appeal Panel with a single presidential member has not been used on this occasion. Consideration 12The appellant's notice of appeal lists 18 points. They, in effect, challenge each step in the reasoning of the Tribunal, and the Tribunal's interpretation of the leading authorities. All of the points are expressed to be errors of law. It is unnecessary for the disposal of this appeal to recite and respond to all 18 points. 13The Appeal Panel has before it the submissions made by both parties to the Tribunal below (in particular the submissions of the applicant (the party descriptor of the appellant before the Tribunal below) filed 27 February 2012 and the statements attached, the respondent's submissions dated 29 February 2012 prepared by Mr S Free of counsel, and the applicant's submissions in reply), as well as the further documents filed in connection with the appeal, being the notice of appeal and the notice in reply. Section 35A Ombudsman Act 1974 14The determination of jurisdiction involves a question of law. The matter in dispute is the meaning to be given to the words 'in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act', and their application to the facts of this case. 15We note that there is no allegation of bad faith in this case so the qualification that appears at the end of sub-section 35A(1) of the Ombudsman Act is not relevant. Nor has there been any application for leave of the Supreme Court. 16Further we note that the anterior question of whether the proceedings before the Tribunal are 'civil' proceedings was not addressed in the Tribunal's reasons; and it is not raised by the notice of appeal. Out of caution, we will address the question briefly. The leading authority as to the scope of the expression 'civil proceedings' is The Ombudsman v Koopman [2003] NSWCA 277; (2003) 58 NSWLR 182 (Court of Appeal: Mason P, Meagher, Santow JJA). In that case a police officer brought a complaint against the Ombudsman in the privacy jurisdiction of this Tribunal. It related to alleged improper disclosures in the course of handling a complaint by the police officer against the Police Force. The Court, reversing the Appeal Panel, held that the proceedings were 'civil' ones for the purpose of the Act, and therefore the immunity applied. It follows, without doubt, that equal opportunity proceedings are civil proceedings within the meaning of the Act. (To similar effect, see Rae v NSW Ombudsman, unreported, 18 March 2010 (ADT Equal Opportunity Division (Patten DP).) 17The leading cases have focussed on the interpretation and application of the words 'for the purpose of executing this or any other Act'. Applying a purposive approach, the courts have, in essence, concluded that the object of the provision is to protect the office of the Ombudsman from external litigation over the office's performance of its public functions, those that go to the office's raison d'etre - the investigation of public complaints of alleged maladministration by government agencies such as the Police Force. 18On the other hand, the courts have not seen the immunity as extending to civil proceedings that are not concerned with the execution of those public functions. So for example, the Ombudsman has been required to respond to external litigation brought by an applicant for employment in his office over a decision not to employ (The Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 (Spigelman CJ, Handley, Basten JJA)). Similarly, the immunity has not been applied to a copyright infringement proceedings brought by a software owner alleging breach by the Ombudsman's office as a result of installing the software without permission on its internal computer system (Micro Focus (US) Inc v State of New South Wales [2011] FCA 787 (Jagot J)). 19As Spigelman CJ said in Laughton at [25]: The purpose of s 35A is to protect from challenge the substantive conduct of the Ombudsman, namely the investigation and other reports and functions for which the Ombudsman Act and the other Acts provide. The words 'executing (an) Act' do not necessarily extend to the performance of any statutory function or the exercise of any statutory power. They may not encompass matters of internal administration such as the employment of staff. 20A similar purposive approach was adopted by Jagot J in Micro Focus. Her Honour gave a series of examples of matters of internal administration that would not, in her view, be functions of the kind to which the immunity is addressed - 'accommodation', 'the employment of officers', 'the training of officers'. 21She relied on the observations of the Court in Laughton, and also referred to a leading High Court authority on the interpretation of statutory agency immunity provisions, Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105, in particular the reasons of Dixon CJ. This decision reflects a cautious approach to the question of what aspects of the conduct undertaken in the pursuit of a statutory, public function take the benefit of an apparently widely-expressed statutory immunity. She noted that the approach in Ardouin had been endorsed by the High Court in Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575; [1999] HCA 45. 22In his submissions, QQ seeks to bring his circumstances within the compass of these authorities. 23We must reject his submissions. 24Part 8A sets down numerous safeguards addressed to the risk that police may not be inclined to investigate complaints against 'themselves' fearlessly and without favour. The Ombudsman is a critical element of the safeguards structure. So for example the Police Commissioner must report a decision whether to investigate or not investigate a complaint to the Ombudsman, the Ombudsman may review and override the Commissioner's decision, the Ombudsman may take control of the investigation, the Ombudsman may choose to actively monitor the investigation; and there are detailed provisions in relation to the reporting obligations of the Commissioner to the Ombudsman. 25The Ombudsman has, in addition, established a protocol for responding to complaints after the investigation has been finalised. This is consistent with the more general functions given to the Ombudsman by the Ombudsman Act. As is well known, under that Act the Ombudsman has wide authority to investigate complaints relating to the administrative conduct of public agencies, and broad discretions in relation to how his office is to go about dealing with those complaints. See in particular, Ombudsman Act, ss 12-25. 26In our view, this is a case that clearly falls within the purview of the expression 'any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act'. The Ombudsman's actions, and in particular his response dated 12 July 2011, was connected to one of the most important functions of the office - the oversight of police investigations of complaints about police. The protocol under which he dealt with the matter was an adjunct to his specific statutory responsibilities under the Police Act. This is not a case like Laughton or Micro Focus which plainly, in our view, involved the non-public relationship of a statutory agency to matters of an administrative kind that are common to all statutory agencies - administration of employment responsibilities and installation and operation of computer systems. 27In our view, the reasons of the Tribunal below dealt appropriately with the issue, and our observations in these reasons are to be read alongside them. Order Appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2012