The Commonwealth Ombudsman's Power to Compel Testimonial Activity for the Purpose of an Investigation
| Date | 01 September 1980 |
| Published date | 01 September 1980 |
| DOI | 10.1177/0067205X8001100306 |
| Author | Leslie Katz |
| Subject Matter | Article |
THE COMMONWEALTH OMBUDSMAN'S POWER
TO
COMPEL TESTIMONIAL ACTIVITY
FOR
THE PURPOSE
OF
AN INVESTIGATION
By
LESLIE
KATZ·
For the purpose
of
reaching adecision about potentially defective
administrative action into which he is conducting an investigation,
the Ombudsman may wish to compel people to engage in various
sorts
of
testimonial
activity-the
furnishing
of
information in
writing, the production
of
documents, the answering
of
questions
orally. This article examines the Ombudsman's powers in that
regard, pointing to matters which may give rise to difficulties in the
exercise
of
such powers and suggesting anumber
of
changes to the
relevant provisions. Some
of
the matters discussed are relevant to
the information-gathering powers
of
other Commonwealth agencies,
for example, the Taxation Commissioner and the Trade Practices
Commission.
Not
discussed in the article is the question
of
excuses
which can be made to avoid complying with avalid request once
made, asubject which deserves its own treatment separately.
In his first Annual Report, covering the year ending 30 June 1978,
the Commonwealth Ombudsman said that he had conducted formal
investigations of complaints received relatively infrequently, relying
instead on discussions and informal inquiries to resolve matters.1
He
added, however: "As the office develops, Iexpect agreater proportion
of complaints will proceed to aformal investigation."2
In
light of this
expectation, it may be timely to examine the Ombudsman's power to
compel testimonial activity for the purpose of an investigation.
The principal relevant section
is
section 9of the Ombudsman Act.3
Sections 9( 1) and
(2)
purport to authorise the Ombudsman to require
people to engage in three different types of testimonial
activity-the
furnishing of information in writing, the production of documents and
the answering of questions before him. Iuse the words "purport to",
,not because Iwish to imply adoubt about the constitutionality of the
relevant provisions, but because it appears that, in the case of one of
the types of testimonial activity referred to, no sanction
is
prescribed for
aperson's refusal to comply with the Ombudsman's requirement.
It
seems best to dispose of this matter before going further.
The problem arises out of the offences section of the Act, section 36.
Section 36(1) (c) provides:
*B.A., LL.B.
(Manit.);
Senior Lecturer, Faculty
of
Law, University
of
Sydney.
1Commonwealth Ombudsman First Annual Report (1977-1978) 33.
:lId. 36.
3Ombudsman
Act
1976
(Cth).
321
322 Federal Law Review
[VOLUME
11
Aperson shall not refuse . . . without lawful excuse . . . to answer
aquestion or produce adocument . . . when required to do so in
pursuance of this Act.
It
does not, however, refer to the third type of testimonial activity which
the Ombudsman can ostensibly compel, the furnishing of information in
writing. This omission appears all the stranger when one notes that
section 36
(2) (b)
makes it an offence to furnish information to the
Ombudsman knowing that it
is
false ormisleadingin amaterial particular.
Perhaps it can be argued that section
36(2)
(a)
fills
the gap.
It
provides:
Aperson shall not wilfully obstruct, hinder or resist the Ombuds-
man . . . in the exercise of his functions under this Act without
lawful excuse.
However, there is adifficulty with such an argument. If section 36(2)(a)
was intended to deal with, inter alia, an unlawful refusal to engage in
the testimonial activity of furnishing information in writing, why was it
thought necessary to deal specifically elsewhere in section 36 with an
unlawful refusal to engage in the other two testimonial activities dealt
with in section 9, answering questions before the Ombudsman, and
producing documents to him? Surely,
if
section
36(2)
(a)
were intended
to cover unlawful refusals to furnish information in writing, it would also
have been intended to cover unlawful refusals to answer questions before
the Ombudsman or produce documents to him, in which case section
36
(1)
(c)
would have been superfluous. The only conclusion seems to be
that although section 9does authorise the Ombudsman to compel people
to answer questions before him or produce documents to him, in the
sense that their refusal to do so would subject them to sanctions under
section 36, it merely purports to authorise the Ombudsman to compel
people to furnish information in writing, so that aperson's refusal to
comply with such arequest would place him in no jeopardy under the
Act.4
4Perhaps it could be argued that aperson who refused without lawful excuse
to furnish information in writing when required to do so by the Ombudsman had
committed the common law misdemeanour
of
contempt
of
statute.
For
adiscussion
of
this crime: The Law Commission (U.K.), Report on Conspiracy and Criminal
Law (Law Com. No. 76) (1976)
Part
VI. Asuccessful prosecution for this crime
has taken place in New South Wales in the twentieth century:
R.
v.
Martin (1904)
4S.R. (N.S.W.) 720, acase which should be read together with the three Chanter
v. Blackwood cases: (1904) 1C.L.R. 39; 121; 456, and with Sawer, Australian
Federal Politics and Law 1901-1929 (1956) 35, 64, in order to gain abetter
understanding
of
the political skulduggery with which it deals.
An
objection to this
argument might be that there are
no
federal common law crimes, but this objection
would seem likely to fail. Certainly Quick and Garran thought that contempt
of
a
federal statute would be apunishable crime: Quick and Garran, The Annotated
Constitution
of
the Australian Commonwealth (1901) 809-810. Judicial acceptance
of
the notion
of
federal common law crimes can be found in
R.
v.
Kidman
(1915)
20
C.L.R. 425, 436 per Griffith C.J., 444 per Isaacs J., and in Connor v.
Sankey [1976] 2 N.S.W.L.R. 570, 597 per Street C.J., although in neither
of
these
cases was contempt
of
afederal statute the particular federal common law crime
under discussion. Another, more weighty, objection would be based
on
the notion,
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