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Ombudsmen Act 1975

Functions of Ombudsmen

19: Evidence

You could also call this:

"What you need to know when giving information to an Ombudsman"

Illustration for Ombudsmen Act 1975

When an Ombudsman is investigating something, you might be asked to give them information. You might have to tell them things or show them documents, even if you are not supposed to share that information with others. The Ombudsman can ask you to come and answer questions, and they can make you promise to tell the truth. If you are asked to give information, you have the same rights as you would if you were a witness in court. The Ombudsman cannot use anything you say against you in court, except if you are accused of lying under oath. You will not get in trouble for sharing information with the Ombudsman, even if you are not supposed to share it with others. If you have to go and see the Ombudsman, you can get paid for your time and expenses, just like you would if you were a witness in court. The Ombudsman has to follow rules to make sure you are treated fairly. They can look at information that might be secret, but they have to be careful with it and only use it for the investigation. The Ombudsman can give their opinion on whether someone is allowed to keep information secret, but they have to be careful not to share that information with others. They can only share their opinion with the person who gave them the information and the person who made the complaint. The Ombudsman has to make sure they do not use any secret information to make decisions about other things.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM431148.

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18: Proceedings of Ombudsmen, or

"What Ombudsmen Do When They Investigate"

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20: Disclosure of certain matters not to be required, or

"The Ombudsman can't make people share secrets that might hurt New Zealand or the public."

19Evidence

  1. Subject to the provisions of this section and of section 20, an Ombudsman 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 Ombudsman to furnish to him any such information, and to produce any documents or papers or things which in the Ombudsman'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 public service agency or organisation, and whether or not such documents, papers, or things are in the custody or under the control of any public service agency or organisation.

  2. An Ombudsman may summon before him and examine on oath—

  3. any person who is an officer or employee or member of any public service agency or organisation named or specified in Schedule 1 and who in the Ombudsman's opinion is able to give any such information as aforesaid; or
    1. any complainant; or
      1. with the prior approval of the Attorney-General in each case, any other person who in the Ombudsman's opinion is able to give any such information—
          1. and for that purpose may administer an oath. Every such examination by the Ombudsman shall be deemed to be a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

        1. Subject to this section and to section 20(1), a person who is bound by the provisions of an enactment (being an Act or secondary legislation within the meaning of the Legislation Act 2019 made by Order in Council) to maintain secrecy in relation to, or not to disclose, any matter may be required to supply any information to or answer any question put by an Ombudsman in relation to that matter, or to produce to an Ombudsman any document or paper or thing relating to it, even if compliance with that requirement would otherwise be in breach of the obligation of secrecy or non-disclosure.

        2. Compliance with a requirement of an Ombudsman (being a requirement made pursuant to subsection (3)) is not a breach of the relevant obligation of secrecy or non-disclosure or of the enactment by which that obligation is imposed.

        3. 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.

        4. In any investigation carried out under this Act pursuant to the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987, nothing in subsection (5) prevents an Ombudsman from—

        5. requiring, under subsection (1), the furnishing of any information or the production of any document, paper, or thing for which privilege is claimed by any person; and
          1. considering the information or inspecting any such document, paper, or thing—
              1. for the purpose of determining whether the information, document, paper, or thing would be properly withheld, but not so as to give the Ombudsman any information, or enable the Ombudsman to make any use of the information, document, paper, or thing that he or she would not, apart from this subsection, be entitled to.

            1. On the production of any information, document, paper, or thing pursuant to subsection (5A), the Ombudsman—

            2. must not release the information, document, paper, or thing, or any information derived from the document, paper, or thing to any person other than—
              1. the producer of the information, document, paper, or thing; or
                1. any barrister or solicitor engaged by the Ombudsman for the purpose of providing legal advice as to whether the information, document, paper, or thing would be properly withheld by that producer under subsection (5); or
                  1. a court:
                  2. may give his or her opinion only to the producer of the information, document, paper or thing and the complainant as to whether or not the claim of privilege is valid:
                    1. must not take into account the information or any information in the document, paper, or thing in forming any opinion concerning the release of any other information, unless the Ombudsman considers the claim of privilege is not valid and has notified the person concerned of that decision.

                      1. 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 an Ombudsman 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 an Ombudsman shall be given against any person.

                      2. No person shall be liable to prosecution for an offence against any enactment, other than this Act, by reason of his compliance with any requirement of an Ombudsman under this section.

                      3. Where any person is required by an Ombudsman 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 Criminal Procedure Act 2011 and for the time being in force shall apply accordingly. For the purposes of this subsection an Ombudsman 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.

                      Compare
                      • 1962 No 10 s 16
                      Notes
                      • Section 19(1): amended, on , by section 135 of the Public Service Act 2020 (2020 No 40).
                      • Section 19(2)(a): amended, on , by section 135 of the Public Service Act 2020 (2020 No 40).
                      • Section 19(3): replaced, on , by section 77(3) of the Legislation Act 2012 (2012 No 119).
                      • Section 19(3): amended, on , by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
                      • Section 19(4): replaced, on , by section 24(1) of the Official Information Amendment Act 1987 (1987 No 8).
                      • Section 19(5A): inserted, on , by section 2 of the Ombudsmen Amendment Act 1997 (1997 No 72).
                      • Section 19(5A): amended, on , by section 3 of the Ombudsmen Amendment Act 2005 (2005 No 109).
                      • Section 19(5B): inserted, on , by section 2 of the Ombudsmen Amendment Act 1997 (1997 No 72).
                      • Section 19(7): amended, on , by section 3(2) of the Ombudsmen Amendment Act (No 2) 1982 (1982 No 164).
                      • Section 19(8): amended, on , by section 413 of the Criminal Procedure Act 2011 (2011 No 81).