OmbudsmanNT Investigation Report Matters arising from allegations of inappropriate conduct by a former Commissioner of Police and another police officer May 2015
Tabled paper 1378
Tabled Papers for 12th Assembly 2012 - 2016; Tabled Papers; ParliamentNT
Tabled by Adam Giles
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29 186. However, the courts have recognised that disclosure of incriminatory information in an inquisitorial forum may, either directly or derivatively, assist in the prosecution of criminal investigations and proceedings in the future. They have found that the privilege can operate in relation to the coercive powers of commissions and bodies such as Ombudsmen.10 187. But the courts have also acknowledged that the privilege may be excluded by legislation, either expressly or by necessary implication. Current position in Ombudsman investigations 188. On an investigation, the NT Ombudsman has significant powers to compel the production of information (sections 52-54), even if that might otherwise be in breach of a non-disclosure requirement or privilege. Section 117(1) and (2) of the Ombudsman Act provide: 117 Information disclosure and privilege (1) An obligation to maintain secrecy or other restriction on the disclosure of information obtained by or given to officers of a public authority, whether imposed by any law of the Territory or otherwise, does not apply to the disclosure of information for preliminary inquiries or an investigation. (2) In the making of preliminary inquiries or conduct of an investigation, the Territory or a public authority is not entitled to any privilege that would apply in a legal proceeding to the production of documents, or the giving of evidence, for the inquiries or investigation. 189. However, that power is limited with respect to individuals by section 117(4): (4) Subject to this Part, an individual has, for the giving of information and the production of documents or other things for preliminary inquiries or an investigation, equivalent privileges to the privileges the person would have as a witness in a proceeding in a court. 190. As an individual would be able to rely on the privilege against self-incrimination in court proceedings, it is arguable that an individual subject to investigation, whether a public official or otherwise, could rely on that privilege when being questioned by the Ombudsman. This clearly places a limitation on the ability of the Office to conduct comprehensive investigations. Other entities with powers to compel disclosure 191. By comparison, the OCPID Act abrogates the privilege against self-incrimination. Section 38(2) provides 38 Witness privileges (2) No privilege exists to protect a witness in an investigation from disclosing information that would tend to incriminate the witness of an offence, to show that the witness is guilty of a breach of discipline or to expose the witness to a penalty, but the information disclosed is not admissible in evidence, in civil, criminal or disciplinary proceedings against the witness except: (a) proceedings for an offence against this Act; or (b) civil proceedings in which a remedy is sought for an act of reprisal. 192. Enquiries with the eight other ombudsman jurisdictions in Australia establish that there is currently an even split between ombudsmen who have the power to require a witness to answer a question that might incriminate them and those who do not. In one case, the power to compel an incriminatory answer is limited to public servants. 10 Sorby v Commonwealth (1983) 152 CLR 281.
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