Part 3 of Schedule 1 to this Act, and sections 13, 18, and 22 of this Act so far as they relate to that Part, shall come into force on a date to be appointed by the Governor-General by Order in Council.
(3)
Except as provided in subsection (2) of this section, this Act shall come into force upon its passing.
In this Act, unless the context otherwise requires,—
Ombudsman, in relation to any function, power, or duty under this Act, means the Ombudsman for the time being investigating the complaint in respect of which the function, power, or duty is being exercised
State enterprise means—
(a)
An organisation that is a State enterprise within the meaning of section 2 of the State-Owned Enterprises Act 1986 and that is named in Part 2 of Schedule 1 to this Act:
(b)
An organisation that was a State enterprise within the meaning of section 2 of the State-Owned Enterprises Act 1986 but which continues to be named in Part 2 of Schedule 1 to this Act.
(2)
For the purposes of Part 2 of Schedule 1 to this Act, a company is a related company of a State enterprise if the State enterprise whether alone or together with any other State enterprise, directly or indirectly owns, or controls the exercise of all the voting rights attaching to,—
(a)
In the case of a company registered under the Companies Act 1955, the equity share capital (as defined in section 158 of the Companies Act 1955) of the company; or
(b)
In the case of a company registered under the Companies Act 1993, the issued shares of the company, (other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital),—
as the case may be.
(3)
For the purposes of Part 2 of Schedule 1 to this Act, a company is a related company of a Crown Research Institute if the Crown Research Institute, whether alone or together with any other Crown Research Institute, directly or indirectly owns, or controls the exercise of all the voting rights attaching to,—
(a)
In the case of a company registered under the Companies Act 1955, the equity share capital (as defined in section 158 of the Companies Act 1955) of the company; or
(b)
In the case of a company registered under the Companies Act 1993, the issued shares of the company (other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital),—
as the case may be.
(4)
For the purposes of Part 2 of Schedule 1 to this Act, a company is a related company of a district health board if the district health board, whether alone or together with any other district health board, directly or indirectly owns, or controls the exercise of all the voting rights attaching to,—
(a)
In the case of a company registered under the Companies Act 1955, the equity share capital (as defined in section 158 of the Companies Act 1955) of the company; or
(b)
In the case of a company registered under the Companies Act 1993, the issued shares of the company (other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital),—
as the case may be.
Section 2 was substituted, as from 10 April 1992, by section 2 Ombudsmen Amendment Act 1992 (1992 No 25).
Subsection (2) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Subsection (3) was inserted, as from 1 July 1992, by section 46(1) Crown Research Institutes Act 1992 (1992 No 47).
Subsection (3) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
The original subsection (4) was inserted, as from 11 May 1993, by section 30(1) Health Reforms (Transitional Provisions) Act 1993 (1993 No 23).
Subsection (4) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Subsection (4) was amended, as from 1 July 1998, by section 5(4) Health and Disability Services Amendment Act 1998 (1998 No 74) by substituting the words “hospital and health service” for the words “Crown health enterprise”.
Subsection (4) was amended, as from 1 January 2001, by section 111(1) New Zealand Public Health and Disability Act 2000 (2000 No 91) by substituting the words “district health board” for the words “hospital and health service” wherever they occur.
Ombudsmen
3-
Ombudsmen
(1)
There shall be appointed, as officers of Parliament and Commissioners for Investigations, one or more Ombudsmen.
(2)
Subject to the provisions of section 7 of this Act, each Ombudsman shall be appointed by the Governor-General on the recommendation of the House of Representatives.
(3)
No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 by reason of his appointment as an Ombudsman.
(4)
One of the Ombudsmen shall be so appointed as Chief Ombudsman, and shall be responsible for the administration of the office, and the co-ordination and allocation of the work between the Ombudsmen.
(5)
In any case where the Governor-General is satisfied that the Chief Ombudsman is incapacitated by illness, absence, or other sufficient cause from performing the duties of his office, the Governor-General may appoint one of the other Ombudsmen to act for the Chief Ombudsman during his incapacity.
(6)
No appointment of an acting Chief Ombudsman and no acts done by him as such, shall in any proceedings be questioned on the ground that the occasion for his appointment had not arisen or had ceased.
Compare: 1962 No 10 s 2
In subsection (3) the reference to “the Government Superannuation Fund Act 1956” was substituted for a reference to “the Superannuation Act 1956” by section 3(3) Government Superannuation Fund Amendment Act 1976 (1976 No 30), as from 1 November 1976.
Subsection (3) was amended, as from 1 April 1988, by section 90(a) State Sector Act 1988 (1988 No 4) by substituting the words “State Sector Act 1988” for the words “State Services Act 1962”.
4-
Ombudsmen to hold no other office
An Ombudsman shall not be capable of being a member of Parliament or of a local authority, 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 an Ombudsman, or engage in any occupation for reward outside the duties of his office.
Except as otherwise provided in this Act, every Ombudsman shall hold office for a term of 5 years.
(2)
Unless his office sooner becomes vacant, every person appointed as an Ombudsman shall hold office until his successor is appointed. Every such person may from time to time be reappointed.
(3)
Any Ombudsman 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, and (except in the case of an Ombudsman appointed under section 8 of this Act) shall so resign his office on attaining the age of 72 years.
Compare: 1962 No 10 s 4
6-
Removal or suspension from office
(1)
Any Ombudsman may at any time be removed or suspended from his office by the Governor-General, upon an address from the House of Representatives, for inability to perform the functions of the office, bankruptcy, neglect of duty, or misconduct.
(2)
At any time when Parliament is not in session, any Ombudsman may be suspended from his office by the Governor-General in Council for inability to perform the functions of the office, bankruptcy, neglect of duty, or misconduct proved to the satisfaction of the Governor-General; but any such suspension shall not continue in force beyond 2 months after the beginning of the next ensuing session of Parliament.
Compare: 1962 No 10 s 5
Subsections (1) and (2) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the office” for the word “disability”.
7-
Filling of vacancy
(1)
If any Ombudsman dies, or resigns his office, or is removed from office, the vacancy thereby created shall be filled in accordance with this section.
(2)
If any vacancy in the office of an Ombudsman occurs at any time while Parliament is in session, it shall be filled by the appointment of an Ombudsman by the Governor-General on the recommendation of the House of Representatives:
Provided that if the vacancy occurs less than 2 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.
(3)
If any such vacancy occurs at any time while Parliament is not in session, the following provisions shall apply:
(a)
The Governor-General in Council may appoint an Ombudsman to fill the vacancy, and the person so appointed shall, unless his office sooner becomes vacant, hold office until his appointment is confirmed by the House of Representatives:
(b)
If the appointment is not so confirmed within 2 months after the commencement of the next ensuing session, the appointment shall lapse and there shall be deemed to be a further vacancy in the office of an Ombudsman.
Compare: 1962 No 10 s 6
8-
Temporary appointments of Ombudsmen
(1)
The Governor-General may, at any time during the illness or absence of any Ombudsman, or for any other temporary purpose whatsoever, appoint an Ombudsman to hold office in accordance with this section, and every such Ombudsman shall be paid such salary, not exceeding the amount payable in accordance with section 9 of this Act to an Ombudsman other than the Chief Ombudsman, as the Governor-General thinks fit.
(2)
The power conferred by this section shall be exercised only on a certificate signed by the Chief Ombudsman to the effect that, in his opinion, it is necessary for the due conduct of the business of the Ombudsmen under this Act that an additional Ombudsman should be temporarily appointed.
(3)
Subject to sections 5 to 7 of this Act, every Ombudsman appointed under this section on account of the illness or absence of an Ombudsman shall hold office during the pleasure of the Governor-General, and every other Ombudsman appointed for a temporary purpose shall hold office for such period, not exceeding 2 years, as may be specified in his warrant of appointment.
(4)
An Ombudsman appointed under this section may from time to time be reappointed, but no Ombudsman shall hold office under this section for more than 5 years in the aggregate.
(5)
The provisions of section 7 of this Act shall apply, with any necessary modifications, to the temporary appointment of an Ombudsman under this section as if the Ombudsman were being appointed under that section to fill a vacancy.
9-
Salaries and allowances of Ombudsmen
(1)
There shall be paid to each Ombudsman out of public money, without further appropriation than this section,—
(a)
A salary at such rate as the Remuneration Authority from time to time determines; and
(b)
Such allowances as are from time to time determined by the Remuneration Authority.
(2)
In the case of the Chief Ombudsman, the rate of salary and the allowances determined may be higher than those of the other Ombudsmen.
(3)
The salary of an Ombudsman is not to be diminished during the continuance of the Ombudsman's appointment.
(4)
Notwithstanding anything in subsection (1) of this section, there shall be paid to each Ombudsman, in respect 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 Ombudsman were a member of a statutory Board and the travelling were in the service of a statutory Board.
Section 9 was substituted, as from 14 February 1978, by section 33(1) Higher Salaries Commission Act 1977 (1977 No 110) and was further substituted, as from 1 April 1985, by section 9(2) Higher Salaries Commission Amendment Act (No 2) 1985 (1985 No 135).
Subsection (1) was amended, as from 1 July 1989, by section 86(1) Public Finance Act 1989 (1989 No 44) by substituting the words “public money” for the words “the Consolidated Account”.
Subsection (1) was amended, as from 1 April 2003, by section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting the words “Remuneration Authority” for the words “Higher Salaries Commission” in both places where they appear.
10-
Oath to be taken by Ombudsmen
(1)
Before entering upon the exercise of the duties of his office an Ombudsman 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 21 of this Act, divulge any information received by him under this Act.
(2)
The oath shall be administered by the Speaker or the Clerk of the House of Representatives.
Compare: 1962 No 10 s 8
11-
Staff
(1)
The Chief Ombudsman may appoint such officers and employees (including acting, temporary, or casual officers and employees) as may be necessary for the efficient carrying out of the functions, duties, and powers of the Ombudsmen under this Act.
(2)
Except where this Act otherwise expressly provides, the Chief Ombudsman shall have all the rights, duties, and powers of an employer in respect of the persons appointed under subsection (1) of this section.
(3)
The Chief Ombudsman shall operate a personnel policy that complies with the principle of being a good employer.
(4)
No person appointed under subsection (1) of this section shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 by reason of that person's appointment under this section.
In section 11(4) the reference to the Government Superannuation Fund Act 1956 was substituted for a reference to the Superannuation Act 1956 by section 3(3) Government Superannuation Fund Amendment Act 1976 (1976 No 30), as from 1 November 1976, and the reference to the State Sector Act 1988 was substituted for a reference to the State Services Act 1962.
Section 11 was substituted, as from 2 September 1996, by section 2 Ombudsmen Amendment Act 1996 (1996 No 137).
12-
Superannuation or retiring allowances of Ombudsmen and staff
For the purpose of providing superannuation or retiring allowances for any Ombudsman and any officer or employee appointed under this Act, there may from time to time be paid sums by way of contributions or subsidies to any scheme that is registered under the Superannuation Schemes Act 1989.
Compare: 1962 No 10 s 10
Section 12 was substituted, as from 1 July 1992, by section 4 Higher Salaries Commission Amendment Act (No 2) 1992 (1992 No 130). Section 5 of that Act provided that this change did not affect the provisions of the Government Superannuation Fund Act 1956.
Subject to section 14 of this Act, 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 to this Act, 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 to this Act, 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 of this Act, and without limiting the generality of subsection (1) of this section, 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 to this Act, 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 of this Act 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 of this Act 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 member of the Police, other than any matter relating to the terms and conditions of service of any person as a member of the Police.
(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
Subsection (7)(d) was substituted, as from 1 April 1989, by section 39(1) Police Complaints Authority Act 1988 (1988 No 2).
Subsection (9) was amended, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124) by substituting the reference to the “High Court” for a reference to the “Supreme Court”.
14-
Limitation of time for certain complaints in respect of local organisations
Nothing in section 13 of this Act shall permit an Ombudsman to investigate any decision or recommendation made, or any act done or omitted, in or by any committee or subcommittee of any organisation named or specified in Part 3 of Schedule 1 to this Act (other than an Education Board or a Hospital Board), or by any officer, employee, or member of any such organisation to which this subsection applies in his capacity as such officer, employee, or member, unless the decision or recommendation was made, or the act or omission occurred or continued within 6 months before Part 3 of Schedule 1 to this Act came into force.
15-
House of Representatives may make rules for guidance of Ombudsmen
(1)
The House of Representatives may from time to time, if it thinks fit, make general rules for the guidance of the Ombudsmen in the exercise of their functions under this Act or under the Official Information Act 1982 or under the Local Government Official Information and Meetings Act 1987 or under the Protected Disclosures Act 2000, and may at any time in like manner revoke or vary any such rules.
(2)
Any such rules may authorise an Ombudsman 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 under the Official Information Act 1982 or under the Local Government Official Information and Meetings Act 1987 or under the Protected Disclosures Act 2000 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 the House of Representatives under this Act.
(3)
All rules made under this section shall be printed and published in accordance with the Acts and Regulations Publication Act 1989.
Compare: 1962 No 10 s 12
Subsection (1) was amended, as from 1 July 1982, by section 2(1) Ombudsmen Amendment Act (No 2) 1982 (1982 No 164) by inserting the words “under this Act or under the Official Information Act 1982”.
Subsections (1) and (2) were amended, as from 1 March 1988, by section 57(1) Local Government Official Information and Meetings Act 1987 (1987 No 174) by inserting the words “or the Local Government Official Information and Meetings Act 1987”.
Subsection (1) was amended, as from 22 October 2003, by section 3 Ombudsmen Amendment Act 2003 (2003 No 91) by substituting the words “under the Local Government Official Information and Meetings Act 1987 or under the Protected Disclosures Act 2000” for the words “the Local Government Official Information and Meetings Act 1987”.
Subsection (2) was amended, as from 1 July 1982, by section 2(2) Ombudsmen Amendment Act (No 2) 1982 (1982 No 164) by inserting the words “or under the Official Information Act 1982”. Section 27 Constitution Act 1986 (1986 No 114) substituted the words “House of Representatives” for the word “Parliament”, as from 1 January 1987.
Subsection (2) was amended, as from 22 October 2003, by section 3 Ombudsmen Amendment Act 2003 (2003 No 91) by substituting the words “under the Local Government Official Information and Meetings Act 1987 or under the Protected Disclosures Act 2000” for the words “the Local Government Official Information and Meetings Act 1987”.
Subsection (3) was amended, as from 19 December 1989, by section 28 Acts and Regulations Publication Act 1989 (1989 No 142) by substituting the words “Acts and Regulations Publication Act 1989” for the words “Regulations Act 1936”.
