Fiji Sessional Legislation
OMBUDSMAN ACT 1998
Act No. 11 of 1998
ARRANGEMENT OF SECTIONS
Part 2- INVESTIGATIONS
(Act No. 11 of 1998)
[20th April 1998]
AN ACT RELATING TO THE CONDUCT OF INVESTIGATIONS BY THE OMBUDSMAN
1.-(1) This Act may be cited as the Ombudsman Act 1998.
(2) This Act commences on a date appointed by the Minister and published in the Gazette.
2.-(1) In this Act, unless the contrary intention appears-
"officer" means a member of the staff of the Ombudsman;
"prescribed authority" has the same meaning as in section 165 (1) of the Constitution;
"principal officer" means-
(a) in relation to a Department - the person holding or performing the duties of the office of Permanent Secretary of the Department; and
(b) in relation to a prescribed authority - the person who constitutes, or is acting as the person who constitutes, the authority or, if the authority is constituted by two or more persons, the person who is entitled to preside at meetings of the authority.
(2) In the application of this Act in relation to the Fiji Police Force or the Fiji Prisons Service, references to the principal officer of a prescribed authority are to be read us references to the Commissioner of Police or the Commissioner of Prisons, as the case may be.
(3) This Act is enacted pursuant to Part 2 of Chapter 11 of the Constitution and a word or phrase used in this Act that has a particular meaning for the purposes of the Constitution has the same meaning in this Act.
Application of Act
3. This Act applies both within and outside the Fiji Islands.
4.-(1) Before starting an investigation of action taken by a department or pre- scribed authority, the Ombudsman or an officer must inform the principal officer that the action is to be investigated.
(2) Investigations must be conducted in private and, subject to this Act, in such manner as the Ombudsman thinks fit.
(3) In conducting an investigation, the Ombudsman or an officer may ask for information from such persons, and make such inquiries, as he or she thinks fit.
(4) The Ombudsman must not make a report in respect of an investigation in which opinions are set out that are critical of a department, prescribed authority or person unless, before completing the investigation, the Ombudsman has-
(a) if the opinions relate to a department or prescribed authority - given the principal officer of the department or authority and the officer principally concerned in the action to which the investigation relates opportunities to appear and to make such submissions, either orally or in writing, in relation to the matter as they think fit, and
(b) if the opinions relate to a person-given the person an opportunity to appear and to make such submissions, either orally or in writing, in relation to the matter as the person thinks fit.
Power to require information to be provided
5.-(1) For the purposes of an investigation, the Ombudsman may, by notice in writing, require a Minister or an officer or member of a department or prescribed authority to furnish information, or to produce documents or records, relevant to the investigation.
(2) If the Ombudsman has reason to believe that a person is able to give information relevant to an investigation, the Ombudsman may, by notice in writing, require the person to attend before him or her, on the date and at the time and place specified in the notice to answer questions relevant to the investigation.
(3) For the purposes of an investigation, the Ombudsman has the same powers as a judge of the High Court in respect of the attendance and examination of witnesses and the production of documents.
(4) Despite anything in any other written law, a person is not excused from giving information, producing a document or other record or answering a question when required to do so pursuant to this Act, if the only ground for refusal is that the giving of the information, the production of the document or record or the answer to the question-
(a) would contravene a provision of a written law, would be contrary to the public interest, or might tend to incriminate the person or make him or her liable to a penalty; or
(b) would disclose legal advice furnished to a Minister, a department or a prescribed authority, but the information, document, record or answer is not admissible in evidence against the person in proceedings other than proceedings for an offence against section 10.
(5) Subject to section 6, a person is not excused from giving information, producing a document or other record or answering a question when required to do so under this Act on the ground that a claim of State privilege could be made in relation to the material concerned.
Certificate of Attorney-General
6. If the Attorney-General certifies that the disclosure of information concerning a specified matter (including the furnishing of information in answer to a question) or the disclosure to the Ombudsman of the contents of a specified document or record would be contrary to the public interest because-
(a) it would prejudice the security, defence or international relations of the State;
(b) it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet, the Ombudsman cannot require a person to give information concerning the matter, to answer questions concerning the matter or to produce the document or record.
Discretion not to investigate
7.-(1) For the purposes of subsection 159(2) of the Constitution, a circumstance in which the Ombudsman has a discretion not to investigate a complaint, or not to investigate a complaint further, is if the Ombudsman is satisfied that the complainant became aware of the action the subject of the complaint more than 12 months before the complaint was made to the Ombudsman.
(2) Where a person makes a complaint to the Ombudsman about action taken by a department or prescribed authority but has not complained to the department or prescribed authority about the action, the Ombudsman may, in his or her discretion, decide not to investigate the action until the person has complained to the department or authority.
Ombudsman and members of staff to maintain secrecy
8.-(1) Subject to this section, the Ombudsman or any officer who, either directly or indirectly and either while remaining or after ceasing to be Ombudsman or an officer, makes a record of, or divulges or communicates to any person, any information acquired in the performance of his or her duties under this Act, commits an offence and is liable on conviction to a fine of $500.
(2) Subsection (1) does not prevent the Ombudsman or an officer from making a record of, or divulging or communicating to any person, information acquired by the Ombudsman or the officer in the performance of his or her duties for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman under the Constitution or this Act.
(3) Subsection (1) does not prevent the Ombudsman from disclosing, in a report made under the Constitution, such matters as, in the Ombudsman's opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.
(4) Subsection (1) does not prevent the Ombudsman from disclosing information, or making a statement, to the public or a section of the public with respect to the performance of the functions of the Ombudsman.
(5) The Ombudsman must not, in disclosing information or making a statement under subsection (4), disclose the name of a complainant or any other matter that would enable a complainant to be identified unless it is fair and reasonable in all the circumstance to do so.
Protection from suit
9.-(1) Neither the Ombudsman nor any officer is liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of a power or authority conferred by the Constitution or this Act.
(2) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith-
(a) the making of a complaint to the Ombudsman;
(b) the making of a statement to, or the furnishing of a document or information to the Ombudsman or an officer, whether or not the statement was made, or the document or information was furnished, pursuant to a requirement under section 5.
10.-(1) A person who refuses or fails, without reasonable excuse-
(a) to attend before the Ombudsman;
(b) to be sworn or make an affirmation;
(c) to furnish information;
(d) to produce a document or record; or
(e) to answer a question,
when required to do so pursuant to this Act, commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 12 months.
(2) A person who-
(a) without reasonable excuse, wilfully obstructs, binders or resists the Ombudsman or an officer in the performance of his or her functions; or
(b) furnishes information or makes a statement to the Ombudsman or an officer knowing that it is false or misleading in a material particular, commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 12 months.
Expenses and allowances
11. The Ombudsman may, in his or her discretion, pay to-
(a) any person by whom a complaint has been made; or
(b) any person who attends or furnishes information for the purposes of an investigation, such amounts in respect of expenses properly incurred or by way of allowance or compensation for loss of time as are payable under the Criminal Procedure Code to a witness attending at a trial or an inquiry before the High Court.
Repeal of Ombudsman Act
12.-(1) The Ombudsman Act (Cap. 3) is repealed.
(2) The repeal of the Ombudsman Act by this Act, or of the Ombudsman Decree 1987 by Section 195(1) or the Constitution Amendment Act 1997, does not affect any complaint made or investigation begun or other action taken pursuant to the repealed Act or Decree and any such complaint, investigation or other action may proceed as if made begun or taken under this Act.
13. The Minister may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to Part 2 of Chapter 11 of the Constitution or this Act.
Passed by the House of Representatives this Twenty Fifth day of March, in the year of our Lord One Thousand, Nine Hundred and Ninety-Eight.
Passed by the Senate this Second day of April, in the year of our Lord One Thousand Nine Hundred and Ninety-Eight.
Controlled by the Office of the Prime Minister