Kaldas v Barbour

1. [1]

   BATHURST CJ: By a further amended summons dated 13 February 2017, the plaintiff, Mr Naguib (Nick) Kaldas, sought certain declaratory and injunctive relief against the defendants arising out of a report by the NSW Ombudsman (the Report), resulting from an investigation known as “Operation Prospect”.

2. [2]

   The defendants challenged the jurisdiction of the Court to hear the claims made by the plaintiff. In the circumstances, Garling J referred five questions to this Court for its consideration. The questions are set out in [10] below.

Background

1. [3]

   Operation Prospect commenced in October 2012, and culminated after four years in the Report the subject of the current proceedings. The investigation was the single largest of its kind undertaken by an Ombudsman in Australia. Essentially, the Operation investigated allegations concerning a broad range of conduct connected to operations of the NSW Crime Commission (NSWCC), known as Mascot I and Mascot II, and an operation of the Police Integrity Commission, known as Florida. The breadth of the investigation included inquiries in relation to: the use of false and misleading information in warrant applications and supporting affidavits, improper targeting or investigation of individuals, mishandling of informants/undercover operatives, unlawful and/or improper dissemination of material from hardcopy files and/or the computer systems of the NSW Police Force, the NSW Crime Commission and/or the Inspector of the Police Integrity Commission, improper interference, the provision of misinformation and/or making false statements and other wrong conduct.

2. [4]

   The complaints of the plaintiff in relation to the Report relate to three findings made in relation to the plaintiff. These were as follows. The first related to the plaintiff’s conduct in requesting or receiving NSW Police Force information on three occasions, which the Ombudsman found was unreasonable conduct in terms of s 122(1)(d)(i) of the Police Act 1990 (NSW), and that the plaintiff should have recognised that his request for and receipt of information in the manner that occurred did not comply with the requirements of the NSW Police Force Code of Conduct and Conflict of Interests Policy. The second related to a finding that the plaintiff’s failure to record and report that he anonymously received confidential NSWCC and NSW Police Force documents in August to September 2012, was unreasonable conduct in terms of s 122(1)(d)(i) of the Police Act, and that he should have reacted in a more formal and considered manner to having received confidential law enforcement information that had “quite clearly” been disseminated in an unauthorised manner. The third related to the plaintiff’s evidence to Operation Prospect, which the Ombudsman found may be conduct that constitutes an offence in terms of s 122(1)(a) of the Police Act, the relevant offence being giving false and misleading testimony under s 21(1) of the Royal Commissions Act 1923 (NSW).

3. [5]

   The first finding related to requests made by the plaintiff to access material about inquiries undertaken by the NSW Police Force into the operations of Special Crime and Internal Affairs, as reported in a media article appearing in the Sun Herald newspaper on 29 August 2010. The second finding related to the plaintiff’s disclosure that he had received documents anonymously. Receipt of these documents was mentioned in a public interest disclosure made by the plaintiff on 13 September 2002, in the form of a formal complaint of illegal actions by members of the former Special Crime and Internal Affairs division, and a request for an independent judicial inquiry. That disclosure, inter alia, alleged there was “systemic, widespread false swearing of affidavits to obtain listening device and telephone intercept warrants” for the plaintiff and those associated with him. The disclosure stated that the plaintiff had received “material from an anonymous source” which proved, inter alia, that false information was used in swearing affidavits, clear conflicts of interest were ignored, the plaintiff was inappropriately bugged and complaints made by the plaintiff were conveyed to those complained about. Written submissions on the same issues were made to the Ombudsman on 9 July 2013. The third finding related to evidence given by the plaintiff to the Ombudsman pursuant to a summons served on 18 August 2014. The relevant portion of that evidence involved an initial denial that the plaintiff had received NSWCC documents from a NSWCC officer. However, that evidence was then altered to the effect that the plaintiff stated he had been shown and given documents when visiting that officer’s home.

4. [6]

   It should be noted the first defendant was the Ombudsman at the time Operation Prospect was initiated in August 2012. He was responsible for the investigation until August 2015. Thereafter, the second defendant was responsible for the conclusion of the investigation, the preparation of the Report and its delivery to Parliament pursuant to s 31 of the Ombudsman Act 1974 (NSW) and s 161 of the Police Act.

5. [7]

   The third defendant was the Deputy Ombudsman at the date of the Report and undertook certain tasks relating to Operation Prospect in that capacity. She ceased to hold the office of Deputy Ombudsman on 6 January 2017.

The claims made by Mr Kaldas

1. [8]

   The further amended summons made 20 claims for relief. The ones relevant to these proceedings may be summarised for present purposes as follows:

2. [9]

   The further amended summons contains a number of other claims for relief but it is unnecessary to refer to them.

The questions referred to the Court of Appeal

1. [10]

   As I indicated, the defendants dispute the Court’s jurisdiction. In those circumstances, Garling J referred the following questions to the Court of Appeal:

2. [11]

   The first Notice to Produce referred to in Question 4 is a Notice to Produce addressed to the second defendant seeking documents including a report from a Dr Vivienne Thom into any complaint regarding the relationship between the second defendant and a Mr John Pritchard, documents concerning a relationship between the third defendant and Mr Pritchard, documents relating to an allegation of misconduct of the third defendant in relation to the plaintiff, and transcripts of evidence given by Mr Andrew Scipione and Mr Malcolm Brammer for the purpose of Operation Prospect.

3. [12]

   The second Notice to Produce called on the first defendant to produce documents relating to meetings between him and Mr Scipione on specified dates and all documents recording communications between him and Mr Scipione concerning Operation Prospect and/or the plaintiff.

4. [13]

   The third Notice to Produce addressed to the second defendant required production of the documents referred to in the second Notice to Produce as well as a large number of other documents relating to findings or comments made in certain sections of the Operation Prospect Report.

5. [14]

   It should be noted that none of the questions referred to the Court of Appeal involved consideration of the substantive merits of any of the claims or, whether even if Question 4 is answered in the negative, the Notices to Produce should otherwise be set aside.

The relevant legislation

1. [15]

   It is convenient to set out the relevant legislation prior to dealing with the referred questions.

2. [16]

   Section 6(1) of the Ombudsman Act provides that the Governor may on the recommendation of the Minister appoint an Ombudsman. Section 6(2) provides that he or she may hold office for a period not exceeding seven years. Section 6(8) provides that the Ombudsman may exercise the functions conferred or imposed on the Ombudsman by the Ombudsman Act or any other Act.

3. [17]

   Section 6A of the Ombudsman Act provides a person is not to be appointed unless the person has been referred to the Parliamentary Joint Committee established under Pt 4A of the Act. The Committee has the power under s 31BA to veto the appointment.

4. [18]

   Section 7 of the Act provides for the appointment of an Acting Ombudsman, while s 8 provides for a Deputy Ombudsman.

5. [19]

   Section 12 of the Act gives any person (including a public authority) the right to complain to the Ombudsman about the conduct of a public authority, subject to certain exceptions which are not relevant for present purposes.

6. [20]

   The expression “public authority” is defined in s 5 of the Act in the following terms:

7. [21]

   Section 13 empowers the Ombudsman to conduct investigations under the Act. Section 13(1) provides as follows:

8. [22]

   Section 13AA empowers the Ombudsman to make preliminary inquiries for the purpose of deciding whether to make particular conduct of a public authority the subject of an investigation, whilst s 13A empowers the Ombudsman to attempt to deal with a complaint by conciliation.

9. [23]

   Sections 16-24 confer certain powers and obligations in connection with the conduct of an investigation. So far as relevant they provide as follows:

10. [24]

    Part 4 of the Act deals with reports. Section 25AA provides that Pt 4 with the exception of s 29 does not apply to an investigation under the Act of police conduct. Police conduct is defined as conduct of a police officer within the meaning of Pt 8A of the Police Act.

11. [25]

    Section 26 deals with the report of an investigation. It is in the following terms:

12. [26]

    Section 26A deals with recommendations to pay compensation. So far as relevant it provides as follows:

13. [27]

    Section 27 deals with a situation where the Ombudsman is dissatisfied with the steps taken as a consequence of his or her report. It is in the following terms:

14. [28]

    Section 28 deals with serious misconduct. It is in the following terms:

15. [29]

    Section 31 empowers the Ombudsman to make a special report to Parliament. Relevantly it provides as follows:

16. [30]

    Section 31AA provides that a copy of a report made to the Presiding Officer of a House of Parliament must be laid before the House on the next sitting day after it is received, whilst s 31AB provides that the Ombudsman may at any time furnish information obtained in discharging his or her function to the Director of Public Prosecutions or to the Independent Commission Against Corruption (ICAC).

17. [31]

    Part 4A deals with the Parliamentary Joint Committee. I have already referred to its power to veto appointments contained in s 31BA. Section 31B provides for its functions which might be described as supervising the activities of the Ombudsman. So far as relevant it provides as follows:

18. [32]

    Sections 35 to 35C are critical to the issues raised by the separate questions. They provide as follows:

19. [33]

    In the Second Reading Speech for the Ombudsman Bill 1974 (NSW), the relevant Minister made the following remarks:

20. [34]

    Sections 35A and 35B were introduced into the Act by the Ombudsman (Amendment) Act 1983 (NSW). Prior to that amendment, two cases raised the question of whether the Court had power to grant declaratory relief against the Ombudsman. In Boyd v The Ombudsman [1981] 2 NSWLR 308 a declaration was sought that in the circumstances of that case the Ombudsman had no power to require or request the Commissioner for Police to carry out a further investigation into a police officer. Rogers J decided the case on the merits. Rogers J referred (at 312) to the reasoning of Stephen J in R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 475, that the report of a Royal Commission to the Minister neither directly affected nor subjected a right of the applicant to a new hazard, and that the prospect of ministerial intervention as a result of the report was not sufficient to justify curial intervention by way of certiorari. Rogers J then noted that the fact that the Ombudsman’s report may not, of its own force, affect the rights of a member of the police force, may in an analogous way affect the standing of the plaintiff to seek a declaration.

21. [35]

    On appeal, in Boyd v The Ombudsman [1983] 1 NSWLR 620, Rogers J’s decision on the merits was affirmed by the majority. Street CJ who formed part of the majority, stated however (at 627-8) that he saw no reason why the police officer did not have the requisite standing to bring the proceedings. Hutley JA who dissented, would have made the declaration sought (at 634).

22. [36]

    In Moroney v The Ombudsman [1982] 2 NSWLR 591, Lee J made an order in the nature of mandamus on the application of a police officer requiring the Ombudsman to furnish a report that a complaint had not been substantiated, and related declarations. The Ombudsman had originally furnished a report stating that he was unable to determine whether or not the complaint was sustained. On appeal (The Ombudsman v Moroney [1983] 1 NSWLR 317), the decision of Lee J was reversed on the merits. The majority in those circumstances did not consider the question of the Court’s power to grant such relief. However, Hutley JA in dissent was prepared to set aside the report and grant declaratory relief: at 340, 341.

23. [37]

    In that context, ss 35A and 35B were enacted. In the Second Reading Speech the Premier made the following remarks:

24. [38]

    Part 8A of the Police Act deals with complaints concerning police officers. The following definitions contained in s 121 of that Act are of relevance:

25. [39]

    Division 2 of Pt 8A sets out the procedure for making complaints. Section 126 gives any person the right to complain about the conduct of a police officer, whilst s 127(4) provides for a complaint to be made to the Ombudsman. Sections 130 and 132 deal with the interrelationship between the Ombudsman and the Police Commissioner on receipt of a complaint. Section 130 requires the Commissioner, as soon as practicable after receiving a notifiable complaint, to cause a copy of the complaint to be sent to the Ombudsman, while s 132 provides that as soon as practicable after receiving a complaint, the Ombudsman must refer the complaint to the Commissioner unless he or she is of the view that it is not in the public interest to do so.

26. [40]

    Division 5 of Pt 8A provides for the investigation of complaints by the Police Commissioner. Section 139 of the Police Act provides as follows:

27. [41]

    Section 140 deals with investigations by the Ombudsman. It is in the following terms:

28. [42]

    Division 6 of Pt 8A deals with procedures following investigation by the Commissioner. The Ombudsman has power under s 153 to request a further investigation and under s 154 to request the Commissioner to review any decision concerning any action to be taken as a result of an investigation. The Commissioner is not obliged to comply with such requests.

29. [43]

    Division 7 of Pt 8A deals with investigations by the Ombudsman of complaints about police conduct under the Ombudsman Act. Of relevance are ss 156, 157 and 158. They are in the following terms:

30. [44]

    Section 160 provides that the Ombudsman must inspect the records of the NSW Police Force annually to ensure that the requirements of Pt 8A are being complied with. Section 161 empowers the Ombudsman to make a special report to the Presiding Officer of each House of Parliament on any matter arising in connection with the exercise of his or her functions under Pt 8A. Section 161 is in the following terms:

31. [45]

    Section 165 of the Police Act is in somewhat similar terms to s 35 of the Ombudsman Act. It provides as follows:

32. [46]

    With that legislative background it is convenient to turn to the question of the construction of ss 35, 35A and 35B. Because the approach by the plaintiff on this question is based in large part on the contention that if s 35A operates to preclude review for jurisdictional error it is invalid, it is convenient to deal with that aspect of the case at the same time as the issue of construction. It should be noted that the plaintiff did not contend that his claims fell within the bad faith exception in s 35A.

The plaintiff’s submissions on construction

1. [47]

   The plaintiff contended that the words “liable” and “civil or criminal proceedings” in s 35A of the Ombudsman Act do not encompass proceedings for judicial review for (at least) jurisdictional error. He contended that the cases which had considered this issue, Ainsworth v The Ombudsman (1988) 17 NSWLR 276 (“Ainsworth v The Ombudsman”), Commissioner of Police v Ombudsman (unreported, NSWSC, Sackville AJ, 9 September 1994) (“CoP v Ombudsman”), Botany Council v The Ombudsman (1995) 37 NSWLR 357 (“Botany Council”), The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCCA 277 (“Ombudsman v Koopman”) and The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 (“Ombudsman v Laughton”), had not determined to the contrary, or if they had, they should not be followed as a result of the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”). Senior counsel for the plaintiff submitted that the decision of Jagot J in Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787 (“Micro Focus”) established that s 35A does not confer immunity for acts or omissions that are not authorised by the Act, or acts or omissions that were merely preparatory or incidental to the exercise of a statutory power by the Ombudsman.

2. [48]

   The plaintiff submitted that the notion of being liable ordinarily involves a liability for a personal remedy to redress an injury and does not extend to proceedings for judicial review by way of certiorari or declaration. He submitted that support for this approach could be found in the decision of the English Court of Appeal in Ex parte Waldron [1986] 1 QB 824 at 848, 851 (“Ex parte Waldron”), and in the tentative view expressed by Basten JA in Ombudsman v Laughton (at [45]) to the effect that an appeal to a tribunal in relation to an appointment was not a civil proceeding to which the Ombudsman is “liable”.

3. [49]

   The plaintiff also submitted that proceedings for judicial review are not civil proceedings within the meaning of that expression in s 35A. He referred to the decision of this Court in Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 (“Patsalis”), where it was held that s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) did not require a person to whom the section applied to seek leave to commence proceedings for judicial review. He noted in particular what was said by Basten JA (at [44], [55]) that the term “civil proceedings” takes its meaning from its context, and in that case did not extend to proceedings for judicial review.

4. [50]

   The plaintiff submitted that further support for this construction could be found in considering the Act as a whole. He contrasted the use of the words “any legal proceedings” in s 35 of the Act with the words “civil or criminal proceedings” in s 35A, submitting that if Parliament had intended to exclude proceedings for judicial review in s 35A, it would have adopted the same words as used in s 35.

5. [51]

   The plaintiff also submitted that the words “in respect of any matter or thing done or omitted to be done for the purpose of executing this or any other act” in s 35A do not extend to a report containing matters on which the Ombudsman was not authorised to report, or a report infected by jurisdictional error by virtue of a denial of procedural fairness, as neither of those matters are required or authorised by the Ombudsman Act or the Police Act.

6. [52]

   The plaintiff submitted that privative clauses must be construed strictly. He submitted that s 35A could only be engaged in the present case if it was read to include acts, matters or things that were ultra vires to a relevant Act. He submitted that this was neither the natural or ordinary meaning of the words, nor the meaning on a strict interpretation of those words.

7. [53]

   The plaintiff also submitted that the courts are reluctant to find that procedural fairness has been excluded and that there are no words of irresistible clearness in the Ombudsman Act (or the Police Act) to suggest an intention on the part of the legislature to exclude compliance with both the hearing rule and the bias rule. He submitted that if s 24 of the Ombudsman Act could be construed as an exhaustive statement of the obligation to afford procedural fairness, it did not exclude the bias rule.

8. [54]

   The plaintiff put at the forefront of his argument that the privative clauses in s 35A of the Ombudsman Act and s 165 of the Police Act must be interpreted in light of the constitutional limits on State legislative power and particularly the principles derived from Kirk. In his written submissions, the plaintiff contended that the effect of the decision in Kirk was that legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. The plaintiff submitted that the various claims made by him were in respect of jurisdictional error and that s 35A, properly construed, does not give the Ombudsman immunity from proceedings for such error. He submitted that the decisions which had previously construed s 35A of the Ombudsman Act were decided prior to the decision in Kirk, and should not be followed.

9. [55]

   The plaintiff submitted the principles in Kirk can apply where what is sought is declaratory relief as distinct from relief in the nature of prerogative writs and that the Ombudsman’s activities do affect legal rights and obligations so as to attract the supervisory jurisdiction of the Court.

10. [56]

    In relation to the question of declaratory relief the plaintiff first pointed to the broad conferral of jurisdiction on the Court in s 23 of the Supreme Court Act 1970 (NSW), the power obtained in s 69 of that Act to grant relief in lieu of the prerogative writs and the power conferred by s 75 empowering the Court to make binding declarations of right, whether or not consequential relief could be claimed. He referred in that context to the decision of the Queensland Court of Appeal in Heery v Criminal Justice Commission [2001] 2 Qd R 610; [2000] QCA 511, in which declarations had been made by the primary judge against the respondent that the use of listening devices at the appellant’s house was done in breach of confidence together with orders that the records retained as a result should be destroyed. Section 101 of the Criminal Justice Act 1989 (Qld) relevantly provided that an act done or omission made by the Commission did not render the Commission liable for any claim, demand or action if the act was done or the omission made in good faith and without negligence for the purpose of the discharge of the functions and responsibilities of the Commission. In that case Thomas JA, with whom Davies JA and Douglas J agreed, made the following remarks (at [23]-[25]):

11. [57]

    The plaintiff also relied on the decision of the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 (“Ainsworth v CJC”), which he submitted demonstrated that declaratory relief could be given even where certiorari could not, including in circumstances where the publication of a report had damaged the applicant’s reputation. The plaintiff pointed in particular to the statement of the plurality (at 581) that it was accepted that superior courts had inherent power to grant declaratory relief.

12. [58]

    The plaintiff submitted that declaratory relief was part of the supervisory jurisdiction of the Supreme Court at Federation because historically declarations against the Crown in favour of private parties were made in the supervisory jurisdiction. Alternatively he stated the principle that there be a body fitting the description of a Supreme Court of a State should be read in light of the current powers of the Supreme Court, as the Constitution ought to be interpreted as a living instrument, referring to what was said by Deane J in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 at 171, 174.

13. [59]

    He also referred to Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129; [2015] VSCA 197 (“Bare v IBAC”) where, in respect of persons who were described in the Police Integrity Act 2008 (Vic) as protected persons, s 109 provided that such persons were not “liable, whether on the ground of lack of jurisdiction or on any other ground, to any civil or criminal proceedings to which they would have been liable apart from this section in respect of any act purported to be done under this Act unless the act was done in bad faith”. The majority in that case held that the section did not preclude judicial review of a decision not to conduct an investigation. Tate JA expressed her conclusion in the following terms (at [373]):

14. [60]

    Having regard to the conclusion which she reached, it was not necessary for her Honour to determine whether the section would extend to prohibiting review for jurisdictional error. However, her Honour made the following remarks (at [378]):

15. [61]

    Warren CJ dissented stating (at [98]) that the distinction between a decision not to investigate and an act done for the purpose of investigation was artificial. Her Honour concluded that in drafting the clause the legislature had made it clear of its intention to oust judicial review for non-jurisdictional errors (at [102]). Her Honour made the following comments in respect of s 35A of the Ombudsman Act:

16. [62]

    Her Honour limited her remarks to non-jurisdictional error. She did not elaborate on her reasons for doing so, merely referring in a footnote to the decision in Kirk (at [102]).

17. [63]

    The plaintiff submitted that the High Court’s focus in Kirk on certiorari was explained by the fact that that was the relief sought in that case.

18. [64]

    The plaintiff contended that if the Court could not review the exercise of power by the Ombudsman it would create an island of power immune from supervision and restraint by the courts.

19. [65]

    In this context it should be noted that senior counsel for the plaintiff accepted it was not an essential characteristic of the Supreme Court jurisdiction in 1901 to review any decisions of a body such as the Ombudsman. However, he submitted the restrictive rules of interpretation protective of individual rights operated with respect to a body such as the Ombudsman whose functions were directed to maintaining the efficiency of the Executive but also contained the power to investigate individuals.

20. [66]

    The plaintiff submitted that the Ombudsman exercises powers which affect legal rights. He identified these as including the power to summon witnesses and require them to give evidence and produce documents under threat of punishment and the power to inspect documents or things held by public authorities. The plaintiff submitted that he had the following legal rights: (a) the right not to be compelled under threat of punishment to answer questions or produce documents; (b) the right to be afforded procedural fairness; (c) the right not to be the subject of findings against him that he may have committed an offence by a body that had no jurisdiction to make such a finding and did so in denial of procedural fairness and (d) the right not to be subject to an investigation by a person who is biased. He submitted the findings against him resulted directly from the exercise of these powers.

21. [67]

    In his written submissions the plaintiff said little about s 35B of the Act. However, he contended that the relief sought in Prayer 11 fell within that provision. Towards the conclusion of the second day of the hearing he also submitted that Prayers 9, 10, 12(a), 13, 14 and 15 of the prayers for relief fell within s 35B. In a note supplied during the course of the hearing he contended the Ombudsman exceeded his jurisdiction in conducting the inquiry by questioning the plaintiff about his contacts with journalists and the provision of documents to the plaintiff by Mr Giorgiutti, Mr Carey or Mr Galletta, which he stated did not relate to a decision to investigate under s 13 of the Ombudsman Act or s 156(3) of the Police Act because no notice of the investigation had been given under s 16 of the former Act. He also submitted the Ombudsman exceeded his jurisdiction by making findings in his Report which he had no power to make under s 161 of the Police Act, by including a finding the plaintiff may have committed a criminal offence which he had no power to do and making adverse findings against him without affording him procedural fairness.

22. [68]

    It should be noted that the plaintiff submitted that if the construction advanced by the Attorney General was to be preferred (see [101] below) he would not be precluded from challenging the Report because it is an essential limit on the jurisdiction of the Ombudsman that the relevant act or omission is for the purpose of executing the Ombudsman Act or any other Act. He submitted that so far as the Report made findings against him in a report under s 161 of the Police Act, the power to make a report under that section is not unfettered and in particular there is no power to make findings or findings of guilt in such a Report.

23. [69]

    The plaintiff submitted there was no power to make findings under s 161 for the following reasons: (a) there is no express power to do so in the Police Act; (b) the principal function of the Ombudsman is to investigate; and (c) the principle of legality supports a narrow interpretation of s 161.

The submissions of the first and second defendants

1. [70]

   The first and second defendants emphasised, referring to the Second Reading Speech to the Ombudsman Bill 1974 (NSW), to which I have referred above at [33], that the function of the Ombudsman is concerned with the quality of administrative decisions and the means adopted to reach those decisions. They submitted, referring to s 26 of the Ombudsman Act, that this is reflected in the breadth of matters on which the Ombudsman might opine in a report. They also emphasised that the consequences of the Ombudsman’s exercise of his or her functions differs fundamentally from those attaching to decisions of judicial bodies, administrative tribunals or administrative decision-makers as the Ombudsman neither determines rights or liabilities, nor makes decisions as to the allocation of public licenses, benefits or resources. It was emphasised that the Ombudsman enjoys no determinative powers.

2. [71]

   In that context, the first and second defendants described s 35A of the Act as part of a unique scheme in which the Ombudsman as an independent officer can express an opinion or make a recommendation that will be considered in other executive processes. They submitted that litigation against the Ombudsman by either a public authority or a complainant could undermine the efficiency and effectiveness of that scheme.

3. [72]

   The first and second defendants contended that the plaintiff’s claims are wholly precluded by s 35A. They also contended the Court has no power nunc pro tunc [i.e. after the hearing of the substantive proceedings, with retrospective effect] to grant leave to bring proceedings under s 35A(2).

4. [73]

   The first and second defendants submitted that the word “liable” in s 35A means “under legal obligation, responsible or answerable”, and that the reference to civil or criminal proceedings encompasses all forms of proceedings.

5. [74]

   The first and second defendants contended that the construction advanced by the plaintiff was inconsistent with the decisions of this Court in Ainsworth v The Ombudsman, CoP v Ombudsman and Botany Council. They submitted that the approach in these authorities was reflected in the Court of Appeal decisions of Ombudsman v Laughton and Ombudsman v Koopman.

6. [75]

   The first and second defendants contended that the words “on the ground of want of jurisdiction” are not apt to refer to a private law claim for damages. They submitted that this construction explained the reference in s 35A(1) to “bad faith”, stating that this is an established ground for judicial review but one that does not, of itself, establish any claim for damages.

7. [76]

   Senior counsel for the first and second defendants submitted that the words “want of jurisdiction” undermines the submission that the provision was limited to making claims for damages. He submitted that the word “liable” in the section meant liable to proceedings not liable to remedies. He submitted that the breadth of the section was emphasised by the words “in respect of any act, matter or thing done or omitted to be done”.

8. [77]

   The first and second defendants submitted that this construction was consistent with s 35B. They submitted that ss 35A and 35B read together indicate an intention to channel jurisdictional challenges to the Ombudsman’s conduct into the stage before the conclusion of the investigation (s 35B(1)), after which proceedings on the ground of want of jurisdiction are prohibited.

9. [78]

   Senior counsel for the first and second defendant submitted that s 35A was of sufficient breadth to include acts, matters or things ultra vires the Act or matters done not for the purpose of executing the Act. He pointed to the fact that ss 35A and 35B were introduced together. He pointed out that s 35A expressly deals with challenges on the ground of want of jurisdiction, whilst s 35B provides if there is a question arising as to the jurisdiction to conduct the investigation that can be the subject of an application to the Supreme Court.

10. [79]

    He submitted that Sackville AJ in CoP v Ombudsman correctly construed the provisions in his conclusion that s 35A prevents a challenge to an investigation or any aspect of it on the ground of want of jurisdiction, but the threshold decision to conduct an investigation can be reviewed pursuant to s 35B. He submitted it was not a question of timing but a limitation that all that could be challenged is the decision to conduct the investigation. He submitted that the effect of that construction was that the Act leaves with the Ombudsman an unreviewable power to conduct the inquiry once he or she has lawfully instituted it, provided that he or she does so in good faith. He submitted that to the extent the plaintiff sought to rely on s 35B, the matters of which complaint were made related to the conduct of the investigation (as opposed to the commencement of it), and thus did not fall within that provision.

11. [80]

    The first and second defendants also submitted that the words “any civil or criminal proceedings” in contrast to “legal proceedings” supported their preferred construction. They submitted the use of the words “civil or criminal proceedings” captured the broadest range of proceedings possible. They also submitted that no proper analogy can be drawn from cases such as Patsalis, as the construction of the phrase must depend on its context.

12. [81]

    The first and second defendants submitted that each of the acts or omissions impugned by the plaintiff were done for the purpose of executing the Ombudsman Act and/or the Police Act. They submitted that investigating the conduct of public authorities and issuing a report to Parliament and the Executive are the very acts that the legislation “require[s] or authorise[s] to be done”.

13. [82]

    The first and second defendants submitted that leave to proceed under s 35A(2)-(3) could not be given nunc pro tunc. They submitted the relevant question was whether there was a legislative intention that failure to seek leave would nullify the proceedings.

14. [83]

    The first and second defendants submitted the language of s 35A(2)-(3) framed a sequence in which a claimant first receives leave and only then can bring the relevant claim. They pointed out that the provision is directed to proceedings not to remedies. They further noted that once the plaintiff’s claim has been heard, the first and second defendants would not be persons “to be proceeded against” (in the future) but would rather already have been “proceeded against” by virtue of the hearing itself. They submitted that the construction for which they contended was necessary to achieve a harmonious result so that the section could apply regardless of the court in which the proceedings were to be brought. The first and second defendants submitted this construction coheres with s 35A as a gatekeeping provision that protects the Ombudsman from suit.

15. [84]

    The first and second defendants submitted that s 35A is not invalidated in any respect by reason of the decision in Kirk.

16. [85]

    The first and second defendants submitted that the High Court in Kirk identified the supervisory role of the Supreme Court which “was, and is, a defining characteristic of those courts” as the “mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court”, “exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus)": Kirk at [98]. The first and second defendants also pointed to the statement by the plurality (at [99]) that deprivation of the Supreme Court of its supervisory jurisdiction would “create islands of power immune from supervision and restraint”. They submitted that in this context where the Court stated that it was constitutionally impermissible to strip the Supreme Court of powers to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, it was referring to relief in the nature of prohibition, mandamus and certiorari.

17. [86]

    The first and second defendants emphasised that given the touchstone for invalidity of a State privative provision is the preservation of the “defining characteristics” of the Supreme Court rather than the strict separation of judicial power that exists at the Commonwealth level, the ouster of jurisdiction must be such as to prevent the Court from answering the constitutional description in s 73 of the Constitution and thus prevent the exercise of unrestrained and potentially distorted executive power.

18. [87]

    The first and second defendants submitted that Kirk was decided in the context of an inferior State court in respect of which the Supreme Court could grant relief in the nature of prerogative writs on account of jurisdictional error. They submitted that the expansion of Kirk to non-judicial bodies must be treated with caution.

19. [88]

    In that context, the first and second defendants submitted that Kirk does not preclude the ouster of the Court’s power to review decisions that have no effect on legal rights and obligations, nor in circumstances where relief other than that in the nature of the prerogative writs is sought. They submitted that the key concern of Kirk is the emergence of islands of power immune from a review of a superior court within the hierarchy established by s 73 of the Constitution: Kirk at [98]-[99]. They submitted that the power contemplated is one which affects legal rights and interests. They referred to what was said by the majority in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at [22] (“Hot Holdings”), that certiorari cannot issue unless there is a legal effect upon rights which may be removed for quashing and submitted that the same approach should apply to prohibition. The first and second defendants accepted that in Ainsworth v CJC, the High Court accepted that prohibition would lie to prevent a statutory commission issuing a report where the dictates of procedural fairness were not complied with even though the report did not affect legal rights, but submitted that the ability to grant prohibition in those circumstances was not a defining characteristic of the Supreme Court.

20. [89]

    Senior counsel for the first and second defendants also accepted that Ainsworth v CJC demonstrated that denial of procedural fairness is a jurisdictional error even if it does not affect legal rights and is thereby not subject to relief by way of certiorari. He submitted, however, that historically prohibition and certiorari were only available in circumstances where the decision in question affected legal rights. He said to the extent Ainsworth decided that in the circumstances of that case prohibition could have been granted prior to the publication of the report even if no legal right was affected, that was an extension of the power to grant such relief which occurred well post-1901.

21. [90]

    The first and second defendants pointed to the fact that the plaintiff only sought relief by way of declaration and injunction. They submitted the plaintiff would not be entitled to the prerogative writs in any event as there was nothing to quash by way of certiorari, no public duty which the Ombudsman could be compelled to perform and as the report had been published, there was nothing to prohibit.

22. [91]

    It was submitted by the first and second defendants that it was not a defining characteristic of the Supreme Court that it be empowered to grant declarations and injunctions even when they were sought in respect of the exercise of a statutory power affected by jurisdictional error. They submitted the jurisdiction to grant bare declarations was not a feature of the inherent statutory jurisdiction of the Supreme Court at federation, but rather a statutory jurisdiction which the State courts did not acquire until well after Federation.

23. [92]

    The first and second defendants submitted that even if the Court concluded s 35A was invalid, it should be construed as operating to the full permissible extent of legislative power. They submitted that in these circumstances the section could apply to judicial review for non-jurisdictional error and to a proceeding such as the present where all that is sought is a declaration.

24. [93]

    The first and second defendants submitted that none of the claims in the further amended summons were made pursuant to s 35B. They submitted that once an investigation has been lawfully instituted, s 35B affords no basis for determining a claim that the Ombudsman lacked jurisdiction to conduct the investigation, or make findings, or that breaches of procedural fairness occurred during the process.

The submissions of the third defendant

1. [94]

   The third defendant submitted that the immunity of the defendants in s 35A(1) is confirmed by reference to the use of the word “proceedings” rather than “liability” on particular causes of action. She submitted the addition of the principles in Kirk to the process of statutory construction does not, having regard to the broad and clear meaning of the words used, materially change the proper construction of the section or render past decisions superfluous.

2. [95]

   So far as the constitutional validity of the section was concerned, the third defendant submitted a sufficient reason to reject the plaintiff’s contention was that the section does not take from the Court the power to grant relief on account of jurisdictional error but limits the power to acts done or omitted to be done in bad faith. She submitted that this restriction does not so alter the character or constitution of the Supreme Court such that it ceases to meet the constitutional description.

3. [96]

   The third defendant submitted that if the Commonwealth Parliament can exclude by clear language the obligation upon bodies other than courts to accord procedural fairness thus preventing any opportunity to assert that jurisdictional error of that kind has been committed, it was difficult to identify a functional difference between that kind of provision and one that confers an immunity from suit on the decision-maker in respect of such a denial.

4. [97]

   The third defendant otherwise adopted the submissions of the first and second defendants on the question of constitutional validity. She submitted that the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398; [2012] HCA 25 (“Public Service Association (SA) v IRC (SA)”), confined the supervisory role of the Supreme Court of the State to the role exercised through the grant of prohibition, certiorari, mandamus and habeas corpus.

5. [98]

   Senior counsel for the third defendant also submitted that his client was an unnecessary and inappropriate party, given she was not a decision-maker in respect of the relevant part of the report. He submitted that in any event, so far as his client was concerned, the protection of individual officers from civil proceedings is incapable of having an interfering effect on the constitutional position of the Supreme Court where there is a statutory office administratively responsible for everything done by its officers.

6. [99]

   Senior counsel for the third defendant submitted that the expression “bad faith” in s 35A(1) encompassed fraud, bribery, dishonesty or other improper purpose.

7. [100]

   Senior counsel for the third defendant submitted it was clear from the judgment in Ainsworth v CJC, that once the report was published and that it did not affect legal rights, there was no opportunity to seek the prerogative writs. He submitted that the position was the same in the present case.

The submissions of the Attorney General

1. [101]

   The Attorney General submitted that ss 35A and 35B effectively expand the scope of non-jurisdictional error under the Act such that the only limits on the Ombudsman’s power are:

2. [102]

   The Attorney General’s alternative submission was that s 35A would not preclude proceedings in the entrenched supervisory jurisdiction of the Court in the nature of the form of prerogative writs for jurisdictional error. Proceedings seeking only declaratory or injunctive relieve or relief for non-jurisdictional error would remain precluded.

3. [103]

   The Attorney General submitted that a privative clause within a statute is taken into account in determining what an apparent restriction or restraint actually signifies, citing Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [61] (“Plaintiff S157”). He submitted that it may be that, by reference to the words of the privative provision, some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of the decision. He submitted that where a statute places limitations on the repository of the power and also contains a privative provision, an attempt must be made to reconcile conflicting legislative provisions, citing Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23 at [25] (“Batterham v QSR”).

4. [104]

   The Attorney General submitted that s 35A(1) is a privative provision that should be taken into account in ascertaining what the restrictions and restraints upon power elsewhere in the Act “actually signify”. He submitted that the phrase “whether on the ground of want of jurisdiction or any other ground” is disjunctive. He submitted it means, first, that the Ombudsman shall not be liable on the ground of want of jurisdiction unless the relevant act, matter or thing was done or omitted to be done in bad faith, thus designating errors other than those involving “bad faith” as not giving rise to want of jurisdiction. He submitted that the express preservation of bad faith as a basis on which proceedings may be brought tends to confirm that errors not amounting to bad faith are not intended to result in invalidity.

5. [105]

   The Attorney General submitted that this construction treats s 35A not as abrogating review for jurisdictional error, but as giving content to that notion, and thus avoiding any constitutionally impermissible result.

6. [106]

   The Attorney General submitted that the special character of the Ombudsman’s office and his or her immediate accountability to Parliament coheres with a legislative intention to widen the scope of non-jurisdictional error. In that context, the Attorney General adopted the submissions of the first and second defendants as to the nature of the office of the Ombudsman.

7. [107]

   The Attorney General also submitted that the proposed construction coheres with s 35(2)(a). He submitted if there was jurisdictional error other than bad faith which could be challenged there would be some judicial proceedings brought under s 35A and others that were not. He submitted that it would be surprising if s 35(1) would apply in some judicial proceedings but not in others.

8. [108]

   The Attorney General submitted that s 35B identifies a further category of essential restraint on power that goes to the jurisdiction of the Ombudsman. He referred to s 13(1) of the Act where it must appear to the Ombudsman that there is conduct of a public authority about which complaint may be made and that the conduct may be conduct referred to in s 26. He submitted the situation was similar in respect of investigations under the Police Act by virtue of ss 156(1) and 159(1) of that Act. He submitted that Sackville AJ correctly summarised the position in CoP v Ombudsman, where he stated that “the Ombudsman does not enjoy immunity from acts done in bad faith [s 35A] and can be brought to account if he or she attempts to embark on an unauthorised investigation [s 35B]”.

9. [109]

   The Attorney General also submitted that as the obligation to afford procedural fairness is derived from the statute conferring the power on the decision-maker it can be abrogated or wholly displaced, or rendered inessential to validity. He pointed to the fact that the Act sets out requirements of procedural fairness in ss 24(1)-(2) and submitted that this reinforced that Parliament has addressed itself to the scope and nature of that obligation, and its inessentiality in a jurisdictional sense.

10. [110]

    The Attorney General submitted that if his submissions on construction were incorrect then s 35A would need to be read down so that it operated to the full extent of legislative power which would be achieved by construing civil and criminal proceedings as not including proceedings falling within the constitutionally entrenched supervisory jurisdiction of the Supreme Court. He submitted that the Constitution only required that proceedings be maintainable to review for jurisdictional error only by way of relief in the nature of the former prerogative writs and not by way of declaratory (or injunctive) relief.

11. [111]

    The Attorney General submitted that the privative clause under consideration in Kirk extended to proceedings for declarations and injunctions. He submitted that the High Court at no point expressed any constitutional doubt about the exclusion of proceedings for injunctive and declaratory relief. He submitted that to include such proceedings would be a significant extension of Kirk.

12. [112]

    The Attorney General submitted that it was erroneous to equate the constitutionally entrenched supervisory jurisdiction inherited from the court of King’s Bench with the jurisdiction in which declarations were made against the Crown at the suit of a private party. The latter was an equitable jurisdiction, distinct from the jurisdiction in which prerogative relief could be claimed.

13. [113]

    The Attorney General accepted that in Ainsworth v CJC, the High Court stated that it was now accepted that superior courts had inherent power to grant declaratory relief (at 581-2). However, he submitted that the High Court did not identify that power as an aspect of the supervisory jurisdiction.

14. [114]

    The Attorney General submitted that the principle in Kirk makes it necessary to distinguish with some specificity the constitutionally entrenched part of the jurisdiction from the non-entrenched part. He submitted the correct question was whether the power to grant a bare declaration, rather than as ancillary relief in the context of an application for prerogative relief, should properly be seen as part of the Court’s supervisory jurisdiction. He submitted that although the High Court granted declaratory relief notwithstanding the unavailability of mandamus or certiorari in Plaintiff M61/201E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”), the plaintiffs had (not colourably) claimed relief by way of the constitutional writs, such that their claims were undoubtedly within the supervisory jurisdiction, but that the ancillary power would not otherwise have been exercisable.

Consideration

1. [115]

   Sections 35A and 35B, like any other statutory provisions, fall to be considered in light of the well-established principles of statutory construction. As was stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the task of statutory construction must begin with a consideration of the text itself, although its meaning may require consideration of the context which includes the general purpose and policy of the provision, in particular, the mischief it is seeking to remedy: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23].

2. [116]

   In the present case it is also important to have regard to the fact that the statute must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at [42]. Thus it would be erroneous in my view to consider ss 35A and 35B of the Act in isolation from each other, or in isolation from the manner in which the statute provides for the supervision of the activities of the Ombudsman.

3. [117]

   As the Attorney General pointed out, in circumstances where a statute places restraints or restrictions on the activities of a decision-maker and also contains a privative provision, the privative provision is taken into account in ascertaining what the apparent restriction actually signifies. In Plaintiff S157, Gleeson CJ (at [19]) pointed out that giving effect to the whole of the statute which confers powers or jurisdiction and which also contains a privative provision, involves a process of construction described as reconciliation, which may result in the conclusion that so far as the privative clause withdraws jurisdiction to challenge the invalidity of an exercise of power, the validity of acts done by the repository of the power is expanded: see also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602; [1997] HCA 11 at [98].

4. [118]

   However as the plurality pointed out in Plaintiff S157, it is simply a rule of construction. In dealing with the reconciliation of such conflicting provisions as articulated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53, the plurality made the following remarks (at [60]):

5. [119]

   In Batterham v QSR, the plurality (at [25]) emphasised that the operation of the privative provisions contained in s 179 of the Industrial Relations Act 1996 (NSW), was to be approached by reference to established principles, and that its meaning and application must be ascertained from its terms set in the context of the Act as a whole (see also Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [81]).

6. [120]

   It is also well established that privative clauses of the nature of that contained in s 35A must be construed strictly on the basis that it is presumed Parliament did not intend to oust the jurisdiction of the Court, save to the extent the legislation expressly so states or necessarily implies.

7. [121]

   Section 35A(1) provides that the Ombudsman shall not be liable whether on the ground of want of jurisdiction or on any other ground. Liable in the section means, in my opinion, liable to suit. That construction is supported by the fact that the relevant phrase used is liable “to any civil or criminal proceedings”. The word “to” used in contradistinction to the word “in”, in my opinion, makes it clear the expression is referring to liable to be sued, rather than, for example, liable in damages or liable for some other remedy.

8. [122]

   That construction is supported by s 35A(2) which provides that a pre-condition of bringing proceedings under s 35A(1) is the leave of the court.

9. [123]

   Further, the words “on the ground of want of jurisdiction or on any other ground” are of extremely wide import. The words “want of jurisdiction”, in my opinion, demonstrate an intention by the legislature to exclude public law remedies as well as personal remedies.

10. [124]

    The plaintiff contended that even if review for non-jurisdictional error was excluded, the section should not be construed as excluding relief for jurisdictional error. As I indicated, he relied heavily in making this submission on the fact that it is beyond the power of the Parliament to take away relief for jurisdictional error. Accepting for present purposes that that proposition stated in those broad terms is correct and it applies to the exercise of power by the Ombudsman, and accepting that an Act should be construed to the full extent of, but not so as to exceed, the legislative power of Parliament (Interpretation Act 1987 (NSW) s 31), it does not seem to me that the language of the section permits it to be read down in this fashion: see Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64 at 14, 36-37.

11. [125]

    This is for three reasons. First, the width of the words used means it is difficult to construe the section as having that limited meaning. Second, such a limitation would be inconsistent with s 35A(2) and (3) which expressly state that any proceedings under s 35A can only be commenced with leave of the Supreme Court, which can only be granted if satisfied that the person to be proceeded against acted in bad faith. That limitation is inconsistent with s 35A(1) not including proceedings for jurisdictional error. Third, jurisdictional error is dealt with, albeit in a somewhat limited fashion, in s 35B which would be rendered otiose if there was a right to bring proceedings for jurisdictional error irrespective of the provisions of s 35A. An interpretation of s 35A as precluding the bringing of proceedings for jurisdictional error, enables ss 35A and 35B to read harmoniously, the contrary construction does not.

12. [126]

    The construction which I prefer is supported by the history of the section. As I have indicated in [34]-[36] above, following the decisions in Boyd v The Ombudsman [1983] 1 NSWLR 620 and Moroney v The Ombudsman [1982] 2 NSWLR 591, it was at least an open question whether the decisions of the Ombudsman were subject to review, including through the grant of declaratory relief. The Second Reading Speech, which I have referred to in [37] above, makes it clear the introduction of s 35A and s 35B was intended to confer a general immunity from suit.

13. [127]

    Further, a legislative intention to exclude judicial review is consistent with the functions that the Ombudsman is required to perform under the Act. They are principally the investigation of complaints but not their adjudication and the making of recommendations to the Minister or the public authority in question: see Ombudsman Act s 26. As was indicated in the Second Reading Speech (see [33] above) the function of the Ombudsman is to persuade not adjudicate. In these circumstances, it is entirely explicable that the legislature intended to exclude judicial review.

14. [128]

    Such a legislative intent is also consistent with the fact that the Ombudsman is subject to detailed scrutiny by the Joint Committee in respect of his or her activities (see [31] above). It is consistent with an intention that his or her activities be overseen by Parliament rather than the Courts.

15. [129]

    Further, the construction of s 35A which I prefer is supported by authority.

16. [130]

    In Ainsworth v The Ombudsman (1988) 17 NSWLR 276, Enderby J concluded that s 35A prevented any form of civil proceedings being brought against the Ombudsman, including in that case certiorari and declaratory relief (at 288). In reaching that conclusion his Honour relied on the history leading to the introduction of the section to which I have referred. He distinguished Ex parte Waldron, on the basis that the scheme and form of the legislation and the subject matter dealt with in the United Kingdom Act was fundamentally different to that contained in the Ombudsman Act. He observed that the United Kingdom Act involved the detention of mentally disturbed persons found in public places, noting the Ombudsman has a totally different function.

17. [131]

    In that context it should be noted that the decision of Ex parte Waldron was not followed in Ex parte Ewing No 2 [1994] 1 WLR 1553, in which it was held that judicial review proceedings were civil proceedings within the meaning of that expression in s 42(1A) of the Supreme Court Act 1981 (UK), which dealt with proceedings by vexatious litigants. Lord Bingham, who delivered the judgment of the Court, expressed some reservation about the reasoning in Ex parte Waldron, but like Enderby J, stated the context was different and that it could not be assumed Parliament intended the same result to follow on every occasion. As Basten JA with respect correctly stated in Patsalis, the words “civil proceedings” take their meaning from their context.

18. [132]

    The same approach as that taken by Enderby J was taken by Sackville AJ in CoP v Ombudsman. He stated that there was nothing untoward in the interpretation of those sections put forward in Ainsworth v The Ombudsman, having regard to the special position of the Ombudsman within the framework of government, and referred to the unique role the Ombudsman played in scrutinising the conduct of government agencies, reporting to Parliament on the result of investigations and preparing such recommendations as may be required.

19. [133]

    Sackville AJ also dealt with the argument that an investigation which departed from the standards of procedural fairness could not be said to be an “act, matter or thing done” or omitted to be done for the purpose of executing the Act. Rejecting this argument he made the following remarks:

20. [134]

    I respectfully agree with that conclusion.

21. [135]

    In Botany Council v The Ombudsman (unreported, NSWSC, Spender AJ, 16 June 1995) Spender AJ adopted the same approach. He also decided that s 35B could not apply to an investigation which had concluded. His decision was affirmed on appeal without consideration of this matter: see Botany Council.

22. [136]

    Section 35A was considered by this Court in Ombudsman v Koopman. The question which arose was whether s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) had impliedly repealed s 35A. The Court held that it had not. However, it was conceded by the claimant in that case that a review of the Ombudsman’s decision under s 55 of the Privacy and Personal Information Protection Act was a civil proceeding for the purpose of s 35A: see Ombudsman v Koopman at 187.

23. [137]

    Ombudsman v Laughton concerned the question of whether a person employed pursuant to s 32 of the Ombudsman Act, could appeal under s 20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) (the GREAT Act), against the Ombudsman’s decision to appoint another person to a particular position within the office of the Ombudsman. Section 32(1) of the Ombudsman Act, as it stood at the time of that decision, provided that staff necessary to enable the Ombudsman to exercise the Ombudsman’s functions may be employed under and subject to the Public Service Management Act 1988 (NSW).

24. [138]

    The Court held that Mr Laughton was entitled to appeal under the GREAT Act. Spigelman CJ concluded (at [25]) that the purpose of s 35A is to protect from challenge the substantive conduct of the Ombudsman, namely investigations, reports and other such functions for which the Ombudsman Act and other Acts provide, but did not necessarily extend to the performance of any statutory function or the exercise of any statutory power. He stated that s 32 was concerned with the employment of staff, an internal matter not arising in the course of an investigation or report. An appeal under s 20 of the GREAT Act was thus not a civil proceeding to which s 35A applied: at [25]-[26].

25. [139]

    Handley JA reached the same conclusion, holding s 35A was limited to what might be called the external exercise or adverse exercise of powers conferred by the Act in the course of obtaining information, or otherwise for the purpose of an authorised investigation and not to matters of internal administration: at [38].

26. [140]

    Basten JA agreed with each of Spigelman CJ and Handley JA. He also expressed the view (at [45]) that although the matter was not fully argued, his tentative view was that an appeal under s 20 of the GREAT Act was not a civil proceeding to which the Ombudsman was liable for the purposes of s 35A. He noted that although a different conclusion was reached in Ainsworth v The Ombudsman, that case was concerned with judicial review proceedings relating to the execution of the statutory function of investigation.

27. [141]

    Nothing said in Ombudsman v Laughton is inconsistent with the first instance decisions which held that s 35A protected the Ombudsman from judicial review. Indeed, each of Spigelman CJ and Handley JA made it clear that the Ombudsman was protected from challenge in respect of the exercise of his powers in conducting an investigation (at [26], [38]). This is consistent with the approach taken in the first instance decisions.

28. [142]

    In MicroFocus, Jagot J held the Ombudsman was liable to proceedings for an alleged breach of copyright where the Ombudsman had copied a software program to enable him to access police records for the purpose of the exercise of his functions under Pt 8A of the Police Act. Jagot J followed Ombudsman v Laughton, holding (at [18]) that the act of copying was not done in the exercise or refusal to exercise the NSW Ombudsman’s powers of obtaining information or investigating complaints, but rather to merely provide the Ombudsman with a method for facilitating the exercise of his powers. She distinguished the case from Ainsworth v The Ombudsman and CoP v The Ombudsman, noting (at [19]) that those proceedings concerned judicial review of a substantive exercise of power.

29. [143]

    The plaintiff placed some reliance on Bare v IBAC. However, to the extent that case decided that a decision not to investigate did not fall within the privative clause in that case, it does not provide any assistance in determining whether judicial review is available for acts done during the course of the investigation. Further, as I indicated (at [61]) Warren CJ and the earlier decision of the Victorian Court of Appeal to which she referred, A1 and A2 v Brouwer (2007) 16 VR 612; [2007] VSCA 139, referred to the construction of s 35A(1) by Enderby J in Ainsworth v Ombudsman with apparent approval. It is correct in dealing with the section under consideration by the Court in that case, Warren CJ excluded from its operation proceedings for jurisdictional error (at [106]). However, for the reasons I have given I have been unable to reach the same conclusion in the present case.

30. [144]

    It is correct, as the plaintiff submitted, that the decisions to which I have referred (with the exception of Bare v IBAC) were made prior to the decision in Kirk and the construction of the provision must be considered in light of that decision: Public Service Association (SA) v IRC (SA) at [60]. However, as I indicated, it does not seem to me that the language of the section can be read down so as to exclude relief in the nature of the prerogative writs for jurisdictional error.

31. [145]

    It is also necessary to consider the construction of the section advanced by the Attorney General. The provision does not seem to me to be capable of being read as expanding the scope of non-jurisdictional error in the manner suggested, so as to limit jurisdictional error to acts or omissions in bad faith. As the majority in Kirk expressly noted (at [94]), the question presented by a privative provision is not just a “conundrum of contrariety requiring a resolution of competing elements of the one legislative instrument.” Section 35A, apart from the bad faith exception, operates to exclude liability to suit generally, including in relation to criminal proceedings and states in express terms that this exclusion can extend to proceedings alleging want of jurisdiction. The section is, in terms, directed to a limitation on liability to suit generally, subject to specific exceptions, as distinguished from confining the extent of jurisdictional error for the purposes of the Act. If a State Parliament can exclude or significantly limit the courts constitutionally entrenched supervisory jurisdiction to grant prerogative relief for what would ordinarily be jurisdictional error by providing that errors shall not be jurisdictional, (see Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [46]-[48], [63]-[65] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); see also at [86], [105], [108] (Edelman J)), it would in my opinion require clear words to construe a statutory provision as having this effect: Plaintiff S157 at [30], [32] (Gleeson CJ). Section 35A does not evince such a clear intention.

32. [146]

    For these reasons, I am of the opinion that s 35A of the Ombudsman Act precludes claims for judicial review, including those alleging jurisdictional error to the extent they arise in respect of any act, matter or thing done for the purpose of executing that Act. I agree with Sackville AJ in CoP v Ombudsman that the protection extends to any act or omission occurring during the course of the inquiry which may amount to jurisdictional error.

33. [147]

    The jurisdiction of the Ombudsman to conduct an investigation is contained in s 13 of the Ombudsman Act. It is conditional upon the Ombudsman being satisfied that there may be conduct of a public authority of the kind referred to in s 26. In that context, s 35B provides the mechanism under which a decision to conduct an investigation may be challenged.

34. [148]

    It does not appear to me that s 35B is subject to a temporal limitation. The subsection refers to an investigation or proposed investigation, thus assuming proceedings under s 35B can be brought after an investigation has commenced. Further, having regard to the fact that s 16 of the Act only requires notification to the complainant after the Ombudsman has determined to conduct an investigation, it seems to me that the right to bring proceedings under s 35B must extend to a period after the investigation has commenced. It is unnecessary to decide if that right extends to a challenge after the investigation has been completed and a report issued.

35. [149]

    However, s 35B is confined in its terms to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation. It is not necessary to consider the circumstances where challenge to such a decision might be made. It is clear, however, that the section does not confer a right to challenge decisions made during the course of an investigation such as, for example, a denial of procedural fairness to a person the subject of the investigation.

36. [150]

    The issue is whether s 35A is invalid insofar as it precludes the claims made in the present case. It is important in those circumstances to keep in mind that what is sought is not the issue of any of the prerogative writs or orders of that nature, but rather declarations and injunctive relief. The injunctive relief ultimately sought (Prayers 16A and 16B of the further amended summons) were mandatory orders removing the report from the Ombudsman’s website (16A) or to table or publish a report that does not contain certain matters which were beyond the jurisdiction of the Ombudsman (16B). It was not contended that the orders sought were in fact in the nature of prerogative relief, nor was it contended that the orders which were sought were orders which at the time of Federation the Court of Queen’s Bench in England was empowered to make in the exercise of its supervisory jurisdiction over inferior tribunals. Rather, the injunctive orders were said to flow from the declarations sought, or were of an ancillary nature. It was also not contended that if s 35A precluded the making of the declarations, then the relief sought in Prayers 16A and 16B could nonetheless be granted. Nor was it contended that even if bare declarations could not be made in the exercise of the supervisory jurisdiction at the time of Federation, such declarations could be made if they were sought ancillary to injunctive relief, in the nature of that claimed in Prayers 16A and 16B.

37. [151]

    The plaintiff’s assertion of constitutional invalidity was based on the decision in Kirk. It is important in those circumstances to keep in mind what in fact was decided in that case.

38. [152]

    In Kirk the plurality stated that the supervisory jurisdiction of the Supreme Court at the time of Federation was not denied by the statutory privative provision in that case: at [98]. The plurality expressed the supervisory jurisdiction of the Court in these terms:

39. [153]

    The plurality explained (at [99]) that to deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons or bodies other than the Supreme Court, in accordance with principles set in the end by the High Court, would create islands of power immune from supervision and restraint, and the development of distorted positions. The plurality also stated it would remove from the Supreme Court one of its defining characteristics.

40. [154]

    It should be noted that the principle in Kirk extends in its terms to review of executive decisions subject to privative clauses: see Kirk at [98] (extracted above at [152]). Thus, in State of South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39, it was accepted that a privative clause precluding proceedings for judicial review, declaratory or injunctive relief, writs, orders or other things done under the Act in question, (the Serious and Organised Crime (Control) Act 2008 (SA)), did not exclude review for jurisdictional error of a decision by the Attorney General to make a declaration in respect of an organisation on the basis that its members were involved in serious criminal activity. French CJ (at [26]) stated that State legislative power does not extend to depriving a State Supreme Court of its supervisory jurisdiction in respect of jurisdictional error by the executive government of the State, its Ministers or authorities: see also Gummow J at [128], Hayne J at [193], Heydon J at [268], Crennan and Bell JJ at [415].

41. [155]

    In Public Service Association (SA) v IRC (SA), the plurality cited the passage from the judgment of French CJ in Totani, to which I have referred, and stated the supervisory role of a Supreme Court was exercised through the grant of prerogative writs and habeas corpus: at [60]-[62].

42. [156]

    However, there remain two areas of difficulty confronting the plaintiff. The first is whether the supervisory jurisdiction of the Supreme Court referred to in Kirk extends to judicial review of bodies such as the Ombudsman, whose powers do not extend to the making of decisions affecting the rights of individuals, but rather only to the making of recommendations, which if accepted by other bodies, may affect such rights. Put another way, if the report of the Ombudsman is not susceptible to review by any of the prerogative writs, then s 35A does not affect the power of the Court to grant such relief.

43. [157]

    The second difficulty is whether, irrespective of the question of whether s 35A is constitutionally invalid to the extent it excludes relief by any of the prerogative writs, it is necessary to consider whether that invalidity extends to proceedings for declarations and injunctions.

44. [158]

    The obligation on the Ombudsman to furnish a report of his or her investigation is to be found in s 26 of the Ombudsman Act. The Ombudsman is obliged to make a report if he or she reaches any of the conclusions in s 26(1) of the Act. Under s 26(2) the Ombudsman is entitled, but not required, to make recommendations including recommendations that compensation be paid for the conduct complained of. Section 27 provides that when the Ombudsman is not satisfied that sufficient steps have been taken in consequence of his or her report, he or she may make a report to the Presiding Officer of each House of Parliament and to the responsible Minister, who is then required to make a statement in response to the report. In the case of conduct which the Ombudsman considers to be misconduct that may warrant dismissal, removal or punishment, the Ombudsman is obliged to provide a report to the persons and bodies referred to in s 28.

45. [159]

    There does not appear to be any legal obligation on the Minister or the relevant public authority to act on the report. The only consequence seems to be that contained in s 27.

46. [160]

    In these circumstances, even excluding the privative clause, it seems to me that certiorari would not go to quash any report by the Ombudsman for jurisdictional error, as the report does not affect the rights of any persons, nor is it a necessary precondition to a decision which could affect such rights, or a step in a process which may affect such rights: Ainsworth v CJC at 580-1; Hot Holdings at 159-162.

47. [161]

    There is, however, some authority which may suggest a contrary conclusion. In City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1; [2014] SASC 36, a complaint was made to the South Australian Ombudsman concerning the dumping of tyres on a person’s property. The Ombudsman recommended that the Council collect the tyres and dispose of them appropriately as the Council had authorised the dumping in breach of its procurement policy. The Council sought certiorari quashing the Ombudsman’s recommendation.

48. [162]

    Although it was common ground between the parties that the opinion reached by the Ombudsman and the recommendations made had no legal force, the application was made in the context of s 273 of the Local Government Act 1999 (SA). That section relevantly provided that the Minister may, on the basis of a report by the Ombudsman, take action including directing a council to rectify the matter and in default, recommend the council should be declared as a defaulting council, which could lead to the appointment of an administrator to that council.

49. [163]

    Stanley J held that certiorari would lie as the Ombudsman’s report operated as a precondition to a potential cause of action, or as a step in a process capable of altering the rights and interests of the party, referring to the powers of the Minister under s 273. He expressed the view that in Ainsworth v CJC, where the plurality referred to a precondition to a course of action, they were not stating the proposition in terms that the report had to result in a particular course of action, but rather that the report might result in a course of action occurring subsequently. He also concluded that declaratory relief was available: at [17]-[21].

50. [164]

    There is no equivalent section to s 273 in either the Ombusdman Act or the Police Act.

51. [165]

    In Parker v Anti-Corruption Commission (unreported, Supreme Court of Western Australia Full Court, 31 March 1999) the question arose whether certiorari would go to quash a report issued by the Anti-Corruption Commission (ACC). The ACC was empowered to furnish reports and make recommendations as to the outcome of investigatory action, and was empowered to refer allegations for further action, by forwarding a copy of the report to an independent agency or appropriate authority. Murray J, with whom Pidgeon J and Wheeler J agreed, stated that such a report, with or without recommendations, may be seen as “if not a precondition, as a step in the process capable of affecting the rights of the individual who is the subject of the report as a consequence of further action which may be taken by the independent agency or appropriate authority to which the allegation is referred”.

52. [166]

    With respect to his Honour, it does not seem to me that the mere fact that the report has a potential to affect rights will be sufficient to grant an application for a writ of certiorari. In Hot Holdings, the majority expressly rejected the proposition that a report which may be taken into account by an ultimate decision-maker, sufficiently affects legal interests for certiorari to lie: Hot Holdings at 164; see also Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 148, 193.

53. [167]

    It should be noted that in Plaintiff M61, the Court (at [100]) expressly left open whether it was correct that certiorari would not go to quash a decision or recommendation prior to the final exercise of a discretion that directly affects legal rights, unless the decision or recommendation must be taken into account by the ultimate decision-maker.

54. [168]

    Were it necessary to finally decide the point, I would conclude that on the present state of authority, certiorari would not lie to quash a report of the Ombudsman. This is because the report could not be said to be part of a process which would lead to the affectation of an individual’s rights. The fact that the relevant Minister or public authority may take unidentified action which may affect the legal rights of a public authority (including an individual falling within that definition) does not seem to me to affect the position.

55. [169]

    The question of prohibition causes greater difficulty. Traditionally, apart from the question of timing, there has not been considered a difference between prohibition and certiorari, the former being able to be resorted to at an earlier stage: R v Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Limited [1924] 1 KB 171 at 206; Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) 841-843. This would include the need that the conduct the subject of the writ would affect legal rights. Thus in The King v Hibble; ex parte the Broken Hill Proprietary Company Limited (1920) 28 CLR 456; [1920] HCA 83, Knox CJ and Gavan Duffy J stated that prohibition would lie to correct an excess of jurisdiction as long as any judgment or order made without jurisdiction remained in force so as to impose liabilities on an individual: at 463-464.

56. [170]

    However, in Ainsworth v CJC, a report was issued containing recommendations that the appellants should not be allowed to participate in the gaming industry, without affording the appellants procedural fairness. Whilst the plurality held that certiorari would not lie as no legal effect or consequence would attach to the report, they stated that if the appellants had advance notice of the Commission’s intention to report without giving them an opportunity to address the matters put against them, they would be entitled to the relief by way of prohibition: at 581.

57. [171]

    The plurality pointed out that the report had the effect of blackening the appellant’s reputation and that it was appropriate to grant declaratory relief. They stated that superior courts had inherent power to grant such relief and that having regard to the practical consequences of the report, it was appropriate that a declaration be made indicating the appellants were denied natural justice: at 581-2.

58. [172]

    Brennan J also accepted that certiorari was not available and that the appellant was entitled to a declaration. His Honour also noted that had the appellants known beforehand of the proposal they could have obtained an injunction restraining performance of the function and possibly an order for prohibition: at 595-597.

59. [173]

    Similarly, in Plaintiff M61, mandamus was not available and there was no utility in granting certiorari. Nevertheless, a declaration was granted as the plaintiffs had a “real interest” in matters to which the declaration would go: at [100]-[103].

60. [174]

    In the present case, the plaintiff has alleged a denial of procedural fairness and it was common ground that if established it would amount to jurisdictional error. There is also little doubt that the findings against the plaintiff (findings 83, 86 and 87 in the Table of Findings contained in vol 1 of the report) involving non-compliance with the NSW Police Force Code of Conduct and Conflict of Interests Policy (finding 83), unreasonable conduct in failing to record and report confidential NSW Crime Commission and Police Force documents (finding 86) and particularly the finding that the plaintiff may have given false and misleading testimony (finding 87), could impact significantly on his reputation. Thus, having regard to what was said by the plurality in Ainsworth v CJC, prohibition could lie prior to the issue of the report.

61. [175]

    Thus, if prohibition had been sought, a real question would arise as to whether s 35A would operate to preclude the bringing of such proceedings. However, none of the Prayers for Relief finally pressed sought orders in the nature of prohibition, and in these circumstances it is not necessary to express a final view on this matter.

62. [176]

    The critical issue is what I have described in [157] above as the second issue, namely, whether the power to make a declaration in the exercise of its supervisory jurisdiction was at Federation, and is a defining characteristic of the Supreme Court which cannot be denied by a statutory privative provision.

63. [177]

    In my opinion, the power to grant a declaration in aid of its supervisory jurisdiction is not a defining characteristic of the Supreme Court in the sense described in Kirk. In these circumstances, s 35A is valid to the extent it precludes an action seeking such relief.

64. [178]

    As was pointed out in Kirk, at federation, each of the Supreme Courts had jurisdiction that included such jurisdiction as the Court of Queen's Bench had in England, as conferred by s 3 of the Australian Courts Act 1828 (Imp) (9 Geo 4 c 83) on the Supreme Courts of NSW and Van Diemen’s Land. That section also conferred on the Supreme Courts of NSW and Van Diemen’s Land the same jurisdiction and authority as the Court of Common Pleas and Exchequer lawfully had and exercised. In addition, s 11 of the Act provided that the Supreme Courts were to be Courts of Equity with the power to do all things necessary for the due execution of such equitable jurisdiction as the Chancellor could lawfully do within the realm of England and in the exercise of his common law jurisdiction. Similar powers were subsequently conferred in the other States of this country.

65. [179]

    It appears that the Court of Exchequer had a limited power to make bare declarations against the Crown. Holdsworth has described jurisdiction of that Court as being grouped under three heads. First, it was a Court of revenue, second, it was a Court of common law and, third it was a Court of equity: W S Holdsworth, History of English Law (Metheun & Co, 6th ed, 1938) vol 1, 232-242. As Holdsworth points out, its jurisdiction came to be limited to revenue cases.

66. [180]

    The Court of Chancery also had a limited common law jurisdiction. That jurisdiction encompassed, firstly, procedures connected with the issue of and proceeding upon certain writs. They are described by Holdsworth at 452 and do not include the prerogative writs, certiorari, mandamus or prohibition. Secondly, it consisted of proceedings by way of petition of right to recover property from the Crown (see as to the nature of these proceedings Esquimalt and Nanaimo Railway Co v Wilson [1920] AC 358 at 364 (“Esquimalt”). Thirdly, it included proceedings brought against officers of the court.

67. [181]

    So far as the second of these areas of jurisdiction was concerned, the Court of Chancery in common with the Court of Exchequer could entertain a claim brought against the Crown by way of a petition of right. The Court of Exchequer had an additional jurisdiction brought by bill against the Attorney General in the Court of Exchequer Chamber: Pawlett v Attorney-General (1668) Hardres 465. It is unclear whether or not the Court of Chancery had this power prior to the transfer to it of the equitable jurisdiction of the Exchequer Chamber: see Dyson v Attorney General [1911] 1 KB 410 at 415, 422 (“Dyson v AG”); Esquimalt at 368; cf Tito v Waddell (No 2) [1977] Ch 106 (“Tito v Waddell”); Woolf and Woolf, Zamir and Woolf – The Declaratory Judgment (Street & Maxwell, 2nd ed, 1993) 23-24. However, it is unnecessary to consider this matter further. The remedy was limited to a bare declaration: Heydon, Leeming and Turner, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) 616.

68. [182]

    The equity jurisdiction of the Exchequer Chamber was transferred to the Court of Chancery by the Court of Chancery Act 1841 (UK). In Tito v Waddell, Megarry VC citing Dyson v AG supra, summarised the position in the following terms (at 256-257):

69. [183]

    Megarry VC left open the question of whether the Court had the power by way of declaration to make coercive orders against the Crown declaring it ought pay a sum of money: at 258.

70. [184]

    This review demonstrates that at the time of the Australian Courts Act, neither the Court of Chancery nor the Court of Exchequer Chamber had jurisdiction to review decisions of inferior courts or tribunals, akin to the power of the Court of King’s Bench, exercised by way of the prerogative writs. As Kourakis J (as his Honour then was) pointed out in Tavitian v Commissioner of Highways [2010] SASC 206 at [27], the jurisdiction of the Court of Exchequer did not extend to jurisdiction in matters of public law (at least apart from revenue matters).

71. [185]

    It is correct that at the present time, relief for jurisdictional error is frequently granted by way of declaratory relief. In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49, Gaudron, Gummow and Kirby JJ explained the nature of the power in the following terms (at [24]-[25]):

72. [186]

    It is important to bear in mind that this power is of a different nature to the power to grant relief by way of the prerogative writs: Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135; [2000] HCA 5 at [17]-[18]. As Gaudron J pointed out in that case, equitable remedies are available because of the inadequacy of the prerogative writs and it is not incongruous that equitable relief should be available, although prerogative relief is not: at [58].

73. [187]

    Further, it is doubtful that as at the time of Federation the Supreme Court had the power to make bare declarations of right.

74. [188]

    Prior to 1880 it seems the Supreme Court of NSW had no power to grant merely declaratory relief. That was the position that existed in England up to 1850: Clough v Ratcliffe (1847) 1 De. G. & Sim 164 at 178-9; Heydon, Leeming and Turner at 612; Woolf & Woolf at 12-13.

75. [189]

    In 1852 the position in England was altered by the passage of the Chancery Procedure Act 1852 (UK). Section 50 of that Act provided “No suit in the said Court [the High Court of Chancery] shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Court to make binding declarations of rights without granting consequential relief”. However, the provision was construed narrowly and limited to circumstances where consequential relief could have been granted but was not sought: Rooke v Lord Kensington (1856) K. & J. 753 at 761-762. To remedy this difficulty, Order 25 r 5 of the Supreme Court Rules 1883 (UK) was introduced, which made it clear that declarations of right could be made whether consequential relief could be claimed or not. The insertion of the rule was described as an enlargement of the power to grant declaratory relief by Cozens-Hardy MR in Dyson v AG at 417; see also Ellis v Duke of Bedford [1899] 1 Ch 494 at 514-515; West v Lord Sackville [1903] 2 Ch 378 at 392-393.

76. [190]

    In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 (“Forster v Jododex”), Gibbs J stated the effect of s 50 of the Chancery Procedure Act, according to decisions which interpreted it, enabled a declaratory decree to be made only if there was the right to some consequential relief: at 434. His Honour did not suggest this interpretation was wrong.

77. [191]

    In 1880 the Equity Act 1880 (NSW) introduced a section in the same form as s 50 of the Chancery Procedure Act (s 50 of the Equity Act). A similar restrictive interpretation was placed on that section as was placed on its English equivalent: Walsh v Alexander (1913) 16 CLR 293; [1913] HCA 24 at 304-305, cited without disapproval by Gibbs J in Forster v Jododex at 434.

78. [192]

    As I have indicated the position in England was remedied by Order 25 r 5 of the Supreme Court Rules 1883. However, an equivalent position in NSW was not enacted until 1924 by amendment to s 10 of the Equity Act 1901 (NSW) by s 18 of the Administration of Justice Act 1924 (NSW).

79. [193]

    This history casts significant doubt on the proposition that at the time of Federation the Supreme Court had power to grant bare declarations of right whether in public law cases or otherwise. However, it must be remembered that in Ainsworth v CJC, the plurality stated that superior courts had inherent power to grant declaratory relief: at 581. Whilst this statement has been the subject of some criticism (Heydon, Leeming and Turner at 619) it has been accepted as correct in subsequent decisions: Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [81], [179]; Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [223] FN [428] (where Callinan J, in dissent referring to Ainsworth, stated that the declaration in that case was not granted as a statutory remedy “the troubled history of which is discussed in Meagher, Gummow & Lehane… but in the exercise of an inherent power possessed by superior courts to grant the declaratory relief; all that is required is that there be a legal controversy and the person seeking relief must have a real interest”); CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2 at [13] (where the plurality, citing Ainsworth, stated that the Supreme Court of Victoria had inherent power to grant declaratory relief but also referred to the adoption in that State of provisions equivalent to Order 25 r 5 of the English Rules and s 50 of the Chancery Procedure Act).

80. [194]

    In these circumstances two things are clear. First, the power to grant a declaration as a public law remedy is a power to grant a remedy separate and distinct from the power to grant relief by way of the prerogative writs. Second, although the Supreme Courts by virtue of s 11 of the Australian Courts Act were granted the powers of the Court of Chancery, including the powers to make declarations consequential on the grant of equitable relief, it is at least doubtful that the power extended to the making of bare declarations. It is also clear that neither the Court of Exchequer nor the Court of Chancery had the power to grant relief by way of the prerogative writs.

81. [195]

    In Kirk the supervisory jurisdiction referred to was explicitly grounded in that which existed at the time of Federation, exercised by way of the prerogative writs of prohibition, certiorari and mandamus (at [98]), or the grant of orders in the nature of that relief (at [99]). The plaintiff acknowledged that what he contended for amounted to an extension of Kirk. That is correct in at least two respects. First, by extending the principle to bodies which do not directly affect rights and, second, by extending the principle to cases where relief other than relief in the nature of the prerogative writs is sought.

82. [196]

    It does not seem to me appropriate for an intermediate Court of Appeal to take this step, particularly having regard to the uncertainty of the Court’s power to grant such relief at the time of Federation. It may be said that this is contrary to the principle which underpinned Kirk, namely, that the Court’s power to grant relief for jurisdictional error should not be constrained: see Public Service Association (SA) v IRC (SA) at [60]. It also may be thought anomalous that whilst prohibition may have been granted prior to the issue of the report, s 35A precludes relief after its issue. Notwithstanding these considerations, which are powerful, I do not think the Court should extend the principle in Kirk to apply in the present situation.

83. [197]

    The report of the Ombudsman was made under s 31 of the Ombudsman Act and s 161 of the Police Act. Thus far I have considered the matter solely by reference to the Ombudsman Act. However, the fact there was also an exercise of power under the Police Act does not affect the position. The same problems arise in relation to the relief sought. Further, like the report under the Ombudsman Act, a report under s 161 of the Police Act carries no legal consequences and cannot be said to be part of a process which would lead to the affectation of an individual’s rights.

84. [198]

    In these circumstances it is convenient to turn to the separate questions.

85. [199]

    For the reasons given in [115]-[149], Question 1(a) should be answered as follows:

86. [200]

    For the reasons given in [150]-[197], Question 2(a) should be answered as follows:

87. [201]

    As I indicated in [67] above, the plaintiff contended Prayers 9, 10, 11, 12, 12A, 13, 14 and 15 fall within s 35B. I have set out those Prayers for Relief in [8] above. As I indicated in [149] the section is confined to the jurisdiction of the Ombudsman to conduct an investigation. The Prayers for Relief all relate to matters which arose during the course of the investigation or a denial of procedural fairness in carrying it out. As such they do not fall within s 35B.

88. [202]

    It follows Question 3 should be answered as follows:

89. [203]

    Because the proceedings are wholly precluded by s 35A, it is unnecessary to answer Questions 4 and 5.

90. [204]

    It follows that I would make the following orders:

    1. (1)

       The separate questions should be answered as follows:

    2. (2)

       The plaintiff should pay the defendants’ costs of the separate questions.

91. [205]

    BASTEN JA:

92. [206]

    This case raises important issues with respect to the exercise of the supervisory jurisdiction of the Supreme Court in relation to the conduct of the New South Wales Ombudsman. As yet the proceedings are at an early stage and, with the agreement of the parties, a judge in the Common Law Division made orders for the separate determination of certain questions, which have then been referred to this Court for consideration.

93. [207]

    The proceedings relate to a report of the Ombudsman, under the title Operation Prospect, which was given to the Presiding Officers of the Houses of Parliament on 20 December 2016. Investigations by the Ombudsman leading to the report commenced in October 2012. The matters the subject of the report included conduct of New South Wales police officers dating from approximately 1998, and of the New South Wales Crime Commission. The Ombudsman made 93 adverse findings in relation to individual officers, investigators and the Crime Commission. The report also included 38 recommendations. Three adverse findings were made with respect to the present applicant, Naguib Kaldas, a former Deputy Commissioner of Police.

Procedural background

1. [208]

   On 6 December 2016, the applicant commenced proceedings in the Supreme Court, seeking declarations that the findings adverse to him were invalid, and seeking various forms of consequential relief. The grounds of invalidity included allegations that the Ombudsman had failed to accord him procedural fairness and that the Ombudsman was biased against him. Although the allegation of bias was not limited to a reasonable apprehension of bias, the applicant expressly eschewed any allegation of bad faith.

(a) statement of separate questions

1. [209]

   The separate questions stated and removed into this Court, pursuant to orders made by Garling J on 10 February 2017, were as follows:

2. [210]

   It is clear that these questions cannot be answered without reference to the terms of the further amended summons, which included 20 claims for relief. Declaration 9 had eight subparagraphs, three of which contained two or three sub-subparagraphs. The pleadings in turn identified details of the conduct sought to be challenged, particularly in the section setting out the orders sought at paragraphs 1, 2, 10 and 15. The “grounds” extended over 16 pages.

3. [211]

   To the extent that the questions (such as question 3) appeared to require attention to each individual “claim” in the further amended summons, no party sought to explore the possibility that there were different answers to be given with respect to different claims. Rather, the claims were treated as falling into two categories, identified by reference to the relief sought, namely (i) declarations and (ii) restraining orders. Further, the grounds were treated as falling within two categories, namely (i) procedural unfairness and (ii) some form of bias. Questions 4 and 5 related to the validity of notices to produce documents issued by the applicant.

4. [212]

   What is, however, clear from all of the questions is that they are limited to the operation of ss 35, 35A and 35B of the Ombudsman Act 1974 (NSW) and, in relation to the notices to produce, s 165 of the Police Act 1990 (NSW), as then in force. [1] It is necessary, therefore, to focus upon the statutory provisions in order to note the competing constructions and hence different views as to their operation and validity. It is convenient to identify, by way of background and context, the significant pleadings.

(b) key elements of pleading

1. [213]

   The relevant pleadings were contained in a further amended summons filed on 13 February 2017. The first two declarations sought by the applicant were as follows:

2. [214]

   The three adverse findings contained in the “table of findings” within Chapter 21 of the report were in the following terms, each relating to “access to and disclosure of confidential records.” [2]

3. [215]

   There were nine particular findings identified in declaration 1(a). The finding at 21.3.1.5 followed an extensive survey of the evidence given by the applicant, setting out extracts from the evidence and summaries of the written submissions which had been made “that extensively canvassed both the manner in which he was required to give evidence and the provisional inferences and findings that were drawn from his evidence and notified to him for comment.” [3] The findings set out under a heading “Analysis”, in the paragraph identified in the summons, covered a little under three pages. [4]

4. [216]

   The second reference identified finding 83 in the table of findings set out above.

5. [217]

   The third reference was to par 22.1.9. It related to the receipt of “anonymous packages of documents”, [5] which resulted in the applicant sending a complaint to the Commissioner of Police on 13 September 2012. Paragraph 22.1.9 was headed “Contradictory evidence concerning Kaldas’s receipt of documents”: it contained no “finding”.

6. [218]

   Paragraph 22.4.3 was headed “Kaldas’s evidence on contact with Giorgiutti”. The findings in the paragraph included the following: [6]

7. [219]

   The sixth reference (to 22.7.1) was made in a section headed “Attitude of parties to dissemination of restricted documents”, [7] and was headed “Kaldas’s evidence”. It set out his evidence in some little detail, without making a finding.

8. [220]

   The next reference, 22.10, was headed “Request for Operation Banks report (October 2012)”. [8] The section ended with the following passage: [9]

9. [221]

   Part 22.11 was headed “Overall analysis of information handling and dissemination in 2012”. [10] The paragraph identified in the summons was 22.11.2, which addressed “Kaldas’s actions, submissions and analysis”. [11] With respect to his submissions, the report noted that he had,

10. [222]

    The final passage referred to was 22.12 which included the other two of the three specifically identified findings against the applicant (findings 86 and 87) set out in the table of findings.

11. [223]

    There were separately numbered grounds provided with respect to the relief claimed; those relating to orders 1 and 2 were as follows.

12. [224]

    It is convenient to note at this point the declaration sought at par 12, which averred that the Ombudsman lacked jurisdiction “to make a finding on whether or not the Plaintiff has given false evidence in a hearing”. The finding was identified in the grounds as Finding 87 set out at [214] above. The relevant ground was in the following terms:

13. [225]

    Paragraphs 3-8 were deleted. Paragraph 9 sought a declaration that the plaintiff was denied natural justice in relation to the “adverse findings or comments about, or references to, the Plaintiff made in the Report”; there were eight separate particulars of failures or refusals to reveal information.

14. [226]

    Paragraph 10 was in the following terms:

15. [227]

    Paragraph 11 sought a declaration that “so much of the questioning of the Plaintiff at the hearing … on 5 September 2014 … as was about … the Plaintiff’s contact with journalists; or … the provision of documents to the Plaintiff by [three named individuals] was not supported by any valid decision to conduct an investigation for the purposes of which a hearing could be held.” With respect to that declaration, the following grounds were identified:

16. [228]

    The scope and nature of the Public Interest Disclosures Act is conveniently revealed in the object of that Act set out in s 3:

17. [229]

    As the Ombudsman pointed out, in so far as declarations were sought with respect to the conduct of the investigation in relation to the plaintiff, the various steps were taken pursuant to the issue of a summons, which was not the subject of challenge, and the asking of questions, which were not the subject of objection.

18. [230]

    Paragraphs 12A and 13 alleged bias against the plaintiff by the first defendant in respect of “his conduct of Operation Prospect”. Paragraphs 14 and 15 sought declarations as to a reasonable apprehension of bias with respect to the third defendant. The grounds set out numerous aspects of the investigation which were said to reveal “prejudgment”, or might lead to a reasonable apprehension of prejudgment.

(c) parties to proceedings

1. [231]

   Before addressing the questions as to the validity of the proceedings, it is convenient to identify the parties. The applicant named, as the first defendant, the individual who held the office of Ombudsman throughout much of the period during which the investigation and preparation of the report were underway (Mr Bruce Barbour). The second defendant was the office of the Ombudsman; the third defendant was a former Deputy Ombudsman (Ms Linda Waugh) who had been in charge of the investigation for a significant period.

2. [232]

   The report was in fact signed and presented to the Minister by the Acting Ombudsman in December 2016, who was not named in the proceedings. It is generally inappropriate to name the individual office holders in such proceedings; that is the conventional course taken in accordance with the observations of Barwick CJ in Brown v Rezitis, [13] in Kerr v Commissioner of Police [14] in this Court and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs. [15] That raises a question as to why the former Ombudsman and his Deputy were joined. Two answers were given by the applicant. The first was that it was their conduct, in office, which was the subject of review and, secondly, that relief was sought against them in the summons.

3. [233]

   The first reason contradicts the conventional approach. It will always be the conduct of a particular officer which is in contention. That does not mean that the individual officer should be joined in the proceedings. While it is true that relief was sought against the individuals, it was, for example, in the form of an order restraining them from having any further involvement or participation in the investigation being carried out by the Ombudsman so far as it concerned or related to the applicant. [16] That order was clearly misconceived; it sought relief against the individuals in respect of official capacities which they no longer held. If they had held them, it would still have been sufficient to seek relief against the Ombudsman. For example, a restraining order directed to the Ombudsman and his or her officers, agents and employees would not require the joinder of all officers, agents and employees.

4. [234]

   That approach is consistent with s 11 of the Ombudsman Act giving effect to acts of a Deputy Ombudsman:

5. [235]

   Accordingly, and subject to any entitlement to costs, the first and third respondents should be removed from the proceedings. That matter can be dealt with, if necessary, when the proceedings return to the Division.

(a) Ombudsman Act 1974

1. [236]

   It will be necessary in due course to have regard to the nature of the Ombudsman’s office and to general law principles regarding the supervisory jurisdiction of the Court. Those matters will provide context within which the statutory provisions now in question should be construed. However, it is convenient first to set out the key provisions.

2. [237]

   In broad terms, under Pt 3 of the Ombudsman Act, the Ombudsman may receive complaints about the “conduct of a public authority” and may investigate that conduct. [17] There are powers in the Act which set out the procedure to be followed by the Ombudsman. These include the following provisions:

3. [238]

   Section 20 of the Act confers power on the Ombudsman, in the course of an investigation, to enter and inspect any premises occupied or used by a public authority and to inspect any document or thing in or on the premises. Section 21A precludes the Ombudsman exercising such powers if it appears that a person may have a ground of legal privilege which would entitle them to resist inspection in legal proceedings. Section 21A does not identify what proceedings might be taken under it, although, perhaps by implication, it was envisaged that a dispute as to the availability of a legal privilege might result in court proceedings to test the powers of the Ombudsman in a particular case.

4. [239]

   Part 5 of the Ombudsman Act (headed “General”) includes ss 32-40. Turning directly to the provisions referred to in the questions before the Court, s 35 deals with the competence and compellability of the Ombudsman in any legal proceedings and, so far as relevant, reads as follows:

5. [240]

   Sections 35A and 35B were central to the resolution of the separate questions. They read, so far as relevant, as follows:

6. [241]

   Section 35C is also tangentially relevant to the other provisions and provides in part:

7. [242]

   The final provision of the Ombudsman Act relevant to the questions (because referred to in s 35) is s 37, which creates offences including wilful obstruction, hindering or resisting the Ombudsman without lawful excuse, and wilfully making false statements or attempting to mislead the Ombudsman. (The precise terms of the offences are not important for present purposes.)

8. [243]

   Turning to the scope of the Ombudsman’s powers under the Ombudsman Act, the critical point for present purposes is the exclusion of conduct described in Sch 1, [19] which, at the relevant time, [20] included “conduct of a police officer when exercising the functions of a police officer with respect to crime and the preservation of the peace.” [21] There was also an exclusion with respect to the conduct of the Executive Officer of the NSW Crime Commission, unless the conduct related to a matter referred to the Ombudsman by the Inspector of the Crime Commission or the Inspector of the Police Integrity Commission.

(b) Police Act 1990 [22]

1. [244]

   The scope of the Ombudsman’s power to deal with conduct of a police officer is to be found in Pt 8A of the Police Act. A complaint could be made [23] alleging unlawful or corrupt conduct or conduct which is unreasonable, unjust, or oppressive or improperly discriminatory, language which reflected in part the matters about which the Ombudsman may report pursuant to s 26(1) of the Ombudsman Act. [24]

2. [245]

   There were complex provisions for referring complaints between the Commissioner, the Ombudsman and other bodies, including the Police Integrity Commission, the Independent Commission Against Corruption and the NSW Crime Commission. [25] There was also provision for investigation by the Police Commissioner. [26] The remaining relevant provisions of the Police Act were to be found in Pt 8A, Divs 7 and 8, which were repealed on 1 July 2017. [27] The repeals do not affect this case.

3. [246]

   Importantly for present purposes, the Ombudsman could investigate a complaint under the Police Act, pursuant to s 156, which stated:

4. [247]

   The Ombudsman was required to prepare a report with respect to such an investigation, pursuant to s 157:

5. [248]

   The Ombudsman was given additional powers to inspect the records of the New South Wales Police Force for the purpose of ascertaining whether the requirements of Pt 8A were being complied with and to “keep under scrutiny” the systems established by the police for dealing with complaints. [28] Finally, there was provision for “special reports” by the Ombudsman under s 161:

6. [249]

   The questions in relation to the issue by the applicant of notices to produce documents require reference to s 165 of the Police Act, which reflected s 35 of the Ombudsman Act and read as follows:

Nature of proceedings

1. [250]

   The underlying basis of the questions referred to this Court has been to an extent obscured by the procedure adopted. First, the further amended summons sought a range of declarations, as noted above, in relation to the conduct of the investigation. However, the only relief which was tenable was a declaration with respect to the validity of impugned “findings” regarding the applicant, and to that extent, the validity of the report. The rest of the material in the further amended summons should properly have been formulated as grounds upon which those challenges were brought. Although a pleading point, it is important to bear in mind the very straightforward nature of the complaint raised by the applicant. In short, if he cannot obtain relief with respect to the findings in the report, the proceedings should be dismissed.

2. [251]

   All that was required from the respondents was a notice of motion seeking to strike out the pleading. Instead, and no doubt at some public expense, an extensive process of requests for particulars was engaged in. Unsurprisingly, although the material was provided to this Court, nothing at all was made of the questions or answers.

3. [252]

   Procedurally, the next step taken by the applicant was to issue notices to the respondents to produce a vast range of documents. The respondents filed motions seeking to set aside the notices to produce. The questions as to the validity of the notices need to be addressed if the preliminary issue, namely the question as to the validity of the proceedings, is answered favourably to the applicant. If it is not, other questions do not strictly arise. However, as the questions involve consideration of interrelated statutory provisions, these questions will be addressed in any event.

4. [253]

   Both in written and oral submissions, the parties focused on the nature of the Ombudsman’s office and functions and the scope of the immunity conferred by s 35A of the Ombudsman Act. The parties joined issue on the basis that the proceedings engaged the “supervisory jurisdiction” of the Court. That term is conventionally used, and was used in the course of argument, to refer to the jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). Section 69 is only concerned with that jurisdiction which the Court formerly had to grant relief “by way of writ, whether of prohibition, mandamus, certiorari or of any other description”. [29] However, the primary relief sought in the present case was declaratory. That is not to suggest that the Court does not have power to grant a declaration with respect to a contravention of the law affecting the rights or interests of an individual, whether pursuant to s 63 of the Supreme Court Act, or pursuant to the Court’s inherent jurisdiction and s 23 of the Supreme Court Act. Declarations will frequently be appropriate in the supervisory jurisdiction, for example in cases where mandamus is sought.

5. [254]

   The right or interest relied upon by the applicant, for which he sought protection, may be broadly identified as his reputation. (It was not identified more precisely.) The challenge to his reputation arose from findings made by a statutory authority, not being a court or judicial tribunal. That the authority, the Ombudsman, had power to make findings detrimental to persons, as in the applicant’s case, who were members of the Police Force, is not in dispute; the proceedings seek to establish that the adverse findings were made in excess of the authority of the Ombudsman’s office. The allegations summarised above challenge the exercise of the Ombudsman’s powers in two broad categories, namely (i) failure to comply with the procedures identified in the Ombudsman Act and (ii) failure to comply with general law obligations of procedural fairness, including absence of “bias”.

6. [255]

   The nature of the jurisdiction thus invoked will be important in considering whether, if the Ombudsman Act appears to exclude any proceedings for declaratory relief in the terms sought, that exclusion is constitutionally valid.

7. [256]

   Finally, it is apparent that the answers to the questions might not resolve other possible flaws in the proceedings. For example, terms such as “procedural fairness” and “bias” were used in the course of submissions as if they had some fixed content, rather than a content dependent upon the statutory context. Such an assumption should not be accepted, unless it is adopted for some very general purpose.

Construction of Ombudsman Act, s 35A

1. [257]

   It is frequently said of an Ombudsman that the outcome of his or her investigations and inquiries will not be a legally binding decision, but rather a report, with findings or opinions recorded, and recommendations made. The benefits which may flow to individuals (or the administration of the government generally) depend upon the persuasive power of the report of the investigations and the recommendations. Not all reports are made available publicly.

2. [258]

   From such a general description it may be inferred that the outcome of the Ombudsman’s investigation will not be the subject of an order quashing or setting aside the report or any part thereof, such orders being available ordinarily only with respect to outcomes which have legal consequences. [30] That proposition must be qualified in circumstances where a particular finding or report is a precondition to the exercise of determinative power by some other officer or agency, [31] but the qualification does not arise in the present case.

3. [259]

   On the other side of the ledger, it is clear that a report which makes adverse findings with respect to named individuals and which is publicly released is likely to have adverse consequences for the reputation of the individual concerned. Further, even if the report is not publicly released, it is provided to the Government and may have consequences for the future employment and promotional prospects of an individual public sector employee. [32] These circumstances are relevant to the existence and extent of any power of judicial review with respect to findings recorded in a report prepared by the Ombudsman. Each of those general propositions must, however, be tested by reference to the specific statutory scheme under the Ombudsman Act.

(a) principles of interpretation

1. [260]

   The Court does not come to the question of construction of s 35A, any more than its drafter did, free of all preconceptions. It is clear at a first reading that the section uses language which has a legal meaning; on the other hand, although the broad purpose of the section is apparent, its particular form and terminology are not immediately recognisable. It is therefore necessary to have regard to the legislative history, understood in a broad sense as including possible sources of the terminology in legislation in other jurisdictions.

2. [261]

   Counsel for the Ombudsman noted that the office was “a unique institution”, referring to a 1988 judgment discussed below. [33] Given the variety of institutions which have proliferated since 1988, that description may be imprecise. [34] However, the integrity functions of the Ombudsman’s office undoubtedly fall into a different category from the administrative functions undertaken by the Executive, which are the usual subject of proceedings by way of judicial review. This has important implications for the exercise of statutory construction. As the High Court stated in an early case construing the Native Title Act 1993 (Cth), “[u]nless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued.” [35] That warning applies to the Ombudsman Act.

3. [262]

   While it is necessary to read the provision in its statutory context, which requires consideration of the constitutional role of the Ombudsman and the functions of and powers conferred on that office, that exercise should be distinguished from the requirement of s 31 of the Interpretation Act 1987 (NSW) directing that an Act be construed “to the full extent of, but so as not to exceed, the legislative power of Parliament.” As noted by Leeming JA in Lazarus v Independent Commission Against Corruption, [36] there is a potential tension between the practical application of this latter obligation and the conventional restraint exercised in not determining questions of constitutional validity if that can be avoided. To similar effect, Gageler J wrote in North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia, [37] that the obligation to choose a construction consistent with validity rather than invalidity only arises where there are alternative constructions, “both of which are reasonably open in the application of ordinary principles of statutory construction”. Gageler J concluded: [38]

4. [263]

   Like most exercises in statutory construction, in practical terms one does not reach a conclusion by a carefully staged process. Where an issue of constitutional invalidity is raised, it is inevitable that the process of construction will be undertaken bearing in mind the arguments which have already been heard as to the basis of possible invalidity. Nevertheless, the reasoning of this Court in Lazarus, reflecting the statements of Gageler J in North Australian Aboriginal Justice Agency, should be followed. It is necessary to put to one side questions of invalidity in determining whether there are alternative readings, or even nuanced variations in the operation of a statutory provision, before deciding that one is potentially invalid.

5. [264]

   This conclusion is important in the present case because the applicant invited the Court to put to one side cases which had been decided before the constraints imposed by Ch III of the Constitution on State legislative power were identified in Kirk v Industrial Court of New South Wales. [39] That course should not be adopted. The question of constitutional invalidity will be deferred until the exercise of statutory construction has been undertaken. That course is appropriate in this case for the further reason that, on a preliminary consideration, it is by no means clear that the applicant’s contentions as to invalidity have merit.

6. [265]

   To the extent that s 35A may be seen as a privative provision (restricting judicial review of a decision by an administrator) and as a protective provision (precluding civil liability in damages resulting from the conduct of an administrative officer) there is a general principle that such clauses be construed restrictively. For example, as to privative provisions, Dawson and Gaudron JJ stated in Public Service Association (SA) v Federated Clerks’ Union of Australia: [40]

7. [266]

   As to a protective provision, Kitto J said in Board of Fire Commissioners (NSW) v Ardouin: [41]

8. [267]

   However, such propositions are not always easy to apply. The language of most privative clauses is quite clear; the problem is the need to reconcile them with what appear to be express constraints on the powers conferred by the statute. They are conventionally seen as ineffective to preclude judicial review on the basis of want or excess of jurisdiction.

9. [268]

   In The King v Hickman; Ex parte Fox and Clinton [42] Dixon J set out what came to be, for more than 50 years, the conventional approach to the construction of a privative clause. He stated: [43]

10. [269]

    As explained in Plaintiff S157/2002 v Commonwealth, [44] compliance with the three limbs of the Hickman principle did not validate purported decisions of the relevant authority; rather, the three limbs constitute a minimum standard in a process of statutory construction. [45] The statute may contain some requirements which are subservient to the operation of the privative clause and others which remain essential or inviolable in the sense that non-conformity will mean that what is done is not an exercise of the powers conferred by the statute. [46]

11. [270]

    A decision made without power may be described as made with want of jurisdiction, or in excess of jurisdiction; such decisions are said to reveal “jurisdictional error” in the sense of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”. [47] In Plaintiff S157 such a decision was held to be made otherwise than “under this Act”, being the language of the privative provision in s 474 of the Migration Act 1958 (Cth). Such a decision may equally be described as a thing done or omitted to be done otherwise than for the purpose of executing relevant legislation, in the language of s 35A of the Ombudsman Act. However, it remains to determine whether, in the circumstances of a particular statutory power, what is alleged (if established on the facts) would constitute a breach of an inviolable limitation on power.

12. [271]

    In the exercise of statutory construction, context is always important, as appears from the reasoning of this Court in Patsalis v State of New South Wales. [48] For example, very clear language might be required to exclude the ability of a prisoner to seek habeas corpus to challenge the legality of his or her detention. Different considerations will apply where the affected individual is a public servant, the interests at risk are purely reputational and there is a strong countervailing public interest, involving the protection of the public from abuse of government power.

13. [272]

    Before considering the specific language of the relevant provisions, it is convenient to set out what appear to be the historical sources.

(b) legislative history – historical sources

1. [273]

   Although it is possible to identify earlier emanations (including in ancient Rome and China) [49] of an office designed to protect the people from abuse of governmental powers, the immediate model adopted in common law countries was the Swedish office of Justitie-ombudsman, dating back to 1809. [50] Moves to create such an office were taken in various Australian states and in New Zealand in the early 1960s. The first enacted legislation was the Parliamentary Commissioner (Ombudsman) Act 1962 (NZ). Section 21 of that Act was a form of privative provision:

2. [274]

   In October 1961, the British Section of the International Commission of Jurists released a report entitled The Citizen and the Administration: The Redress of Grievances (“the Whyatt report”). The Whyatt report recommended the introduction of a British Ombudsman, and included a copy of the recently released New Zealand Bill. [52] The Whyatt Report further recommended that the proposed parliamentary commissioner “should be answerable only to Parliament”. [53]

3. [275]

   In Australia, although Tasmania appeared likely to be the first state to enact comparable legislation, [54] that accolade went to Western Australia [55] for the Parliamentary Commissioner Act 1971 (WA), which contained provisions mirrored in ss 35, 35A and 35B of the New South Wales Act. So far as relevant the equivalent provisions read as follows:

4. [276]

   The original Western Australian Bill did not contain the words “negligently or”, which were inserted in Committee. [56] Those words were removed in 1984, bringing the Western Australian legislation into line with provisions in other Australian jurisdictions in this respect, [57] although current legislation in Queensland introduced a reference to negligence in 2001. [58]

5. [277]

   Two other Acts preceded the New South Wales legislation, namely the Ombudsman Act 1972 (SA) and the Ombudsman Act 1973 (Vic). New South Wales and Queensland passed legislation in 1974, the Commonwealth in 1976 and the Northern Territory in 1978. Tasmania was the last to do so, with the appointment of its first Ombudsman in May 1979. [59] The term “Parliamentary Commissioner” used in some early legislation is still reflected in legislation in Victoria which identifies the Ombudsman as an independent officer of the Parliament. [60]

(c) functions of Ombudsman

1. [278]

   An inquiry into the nature of the Ombudsman’s functions should commence with the Ombudsman Act as enacted in 1974. Since that time there have been major additions to the role of the Ombudsman with the inclusion of a new Pt 3A (Child protection), Pt 3B (Aboriginal programs) and Pt 3C (Protection of people with disability). However, these are largely self-contained roles which need not be addressed in the present analysis.

2. [279]

   The Ombudsman was established with the primary function of investigating any “conduct of a public authority” which was the subject of a complaint by any person. [61] This remit was wide, but did not cover all the operations of the State Government. The limitations were achieved in two ways. First, “conduct” was defined to mean: [62]

3. [280]

   The second limiting factor was the exclusion of conduct of a class described in the schedule to the Act (now Sch 1). Broadly speaking, the schedule excluded acts of the legislature (including Ministers and Members of Parliament) and the judiciary (including in that term any person or body before whom witnesses may be compelled to appear and give evidence).

4. [281]

   There were other specific exclusions in the original schedule, including conduct of public authorities associated with the administration of justice, royal commissions and the Police Force. There were specific exclusions for the Council of the City of Sydney and authorities investing funds. Those limitations have since expanded, although the underlying characteristics of the exclusions are largely consistent with the original legislation. One significant purpose is the exclusion of bodies which, like the Ombudsman, have what might broadly be described as “integrity functions”. [63]

5. [282]

   In addition to defining the areas of public activity which could be the subject of investigation, the Ombudsman Act identified two triggers for investigation. First, “any person” could complain to the Ombudsman about the conduct of a public authority, [64] such a complaint being sufficient to trigger the power (though not a duty) to investigate, pursuant to s 13(1). However, that power was not contingent upon a complaint having been made but was engaged whenever it “appears to the Ombudsman” that conduct of a public authority “about which a complaint may be made under section 12” may be “wrong”. [65] The significant characteristic of these provisions is that the Ombudsman’s powers are not triggered only by complaints, but also by the Ombudsman’s satisfaction by any means (none being specified) that there may have been wrong conduct.

6. [283]

   As enacted, the concept of “wrong” conduct was defined in s 5(2) in the following terms:

7. [284]

   There has been a minor variation in the form of the legislation, which had no practical implication for its operation. Thus, the power to investigate contained in s 13 now speaks not of “conduct … [which] may be wrong”, but “conduct … [which] may be conduct referred to in section 26”. Section 26 obliges the Ombudsman to make a report in specified circumstances. Section 26(1) used to impose the obligation where the Ombudsman found that the conduct was “wrong”; in its present form, s 26(1) sets out the characteristics which were formerly to be found in the definition of “wrong”. There have, however, been minor clarifications of the characteristics of conduct which warrant a report and it is therefore convenient to set out s 26(1) in full.

8. [285]

   There are two aspects of this characterisation of wrong conduct which are important for present purposes. The first is that the specific characteristics now set out in s 26(1)(a)-(f) reflect conventional grounds for judicial review of administrative action. Secondly, the characteristics are not limited to such grounds but extend to conduct which is “otherwise wrong”. That is not to say that the duty to report is unconstrained, but that, however one reads the words “otherwise wrong”, it is clear that a broad evaluative judgment is conferred on the Ombudsman to report critically, and potentially adversely, on the conduct of public authorities, who may well be individuals.

(d) decision to investigate

1. [286]

   It is then convenient to have regard to the procedures set out in the statute. The first formal step taken by the Ombudsman requires a decision to investigate conduct or, where there has been a complaint, refuse to investigate. The Act also expressly identifies the power of the Ombudsman to “discontinue an investigation”. [66] In deciding whether to investigate or discontinue an investigation, a number of matters may be taken into account, but the list is non-exhaustive. [67] There are only two constraints on the decision-making process: first, pursuant to a provision not contained in the original Act, s 13(5) requires that the Ombudsman “shall not investigate” conduct of a local government authority that is otherwise subject to a right of appeal or review unless “the Ombudsman is of the opinion that special circumstances make it unreasonable to expect that right to be or to have been exercised.” Relevantly for present purposes, s 13(4A) (now repealed) required that “[i]n deciding whether to discontinue an investigation of police conduct, the Ombudsman shall have regard to the public interest.” The reason for the inclusion of that provision is unclear, in part because of the exclusion of a broad range of “police conduct” from the scope of the Ombudsman Act. Further, it is by no means clear why the public interest is a mandatory consideration only in deciding whether to discontinue an investigation.

2. [287]

   In 1995, the Act was amended to allow the Ombudsman to make “preliminary inquiries” for the purpose of deciding whether to investigate. [68]

3. [288]

   The Ombudsman is subject to certain principles of good administration. Thus, in refusing to investigate a complaint or discontinuing an investigation of the conduct complained of, the Ombudsman “shall inform the complainant in writing of his or her decision and the reasons for the decision.” [69] Similarly, where the Ombudsman decides to investigate, s 16 requires that he or she give notice of the decision to the complainant, and the head of the public authority concerned. [70] Further, the notice was required to be in writing and “must describe the conduct or police conduct the subject of the investigation and must, so far as practicable, identify the public authority.” [71] The reference to “police conduct” was a reference to conduct of a police officer within the meaning of Pt 8A of the Police Act. [72]

(e) nature of investigation

1. [289]

   The Ombudsman has compulsive powers to require a public authority to provide information and documents. [73] There is also a power to enter and inspect premises and documents on premises. [74] Those powers may not be exercised in circumstances where “it appears to the Ombudsman that any person has a ground of privilege”, absent consent to inspection or production, but not including grounds of “public interest”, “any privilege of a public authority” or “any duty of secrecy or other restriction on disclosure applying to a public authority”. [75]

2. [290]

   Although the Ombudsman is required to investigate “in the absence of the public”, [76] there is a separate power to conduct an inquiry. For that purpose, the Ombudsman has the powers of a Commissioner under Pt 2, Div 1 of the Royal Commissions Act. [77]

3. [291]

   The definition of “public authority” includes statutory bodies, agencies and individuals employed in a public service agency or in the service of the Crown. Accordingly, where the investigation involves the conduct of an individual, he or she should receive a notice pursuant to s 16 of the decision to conduct the investigation. Further, s 24 required the Ombudsman to give that person “an opportunity to make submissions on the conduct or police conduct the subject of the investigation”. [78] If considering making “adverse comment in respect of any person” in a report, the Ombudsman is required to inform that person “of the substance of the grounds of the adverse comment” and to give the person an opportunity to make submissions. [79] The latter obligations, however, are subject to an exception in relation to a report under s 28.

4. [292]

   The terms of s 16(2) may be said to go beyond the requirements of good administrative practice and oblige the Ombudsman to comply with an aspect of procedural fairness. However, there is a separate question as to whether these obligations give rise to legally enforceable private rights. There is a further question as to whether breach renders any subsequent step taken by the Ombudsman invalid. The contention that such a result followed was at the heart of the applicant’s case.

(f) outcome of investigation

1. [293]

   Part 4 of the Act, as enacted, was brief. Pursuant to s 26, [80] which remains in similar form to the original enactment, where the Ombudsman makes a finding of wrong conduct, he or she must make a report recording the finding and giving reasons. The report may include recommendations that the conduct be reviewed, that action be taken to rectify, mitigate or change the conduct or its consequences, that reasons be given for the conduct and that any law or practice be changed. Finally, the Ombudsman may include a recommendation “that any other step be taken.” How broadly the last head of power operates is unclear from the statutory scheme. Thus, s 28 provides for the Ombudsman to report his or her opinion that a public authority “is or may be guilty of misconduct … to such an extent as … may warrant dismissal, removal or punishment”. It may be inferred from the separate provision in s 28 that a recommendation as to disciplinary proceedings against an officer is not contemplated in a report under s 26.

2. [294]

   Section 27 provides for a follow-up report.

3. [295]

   It is then necessary to consider to whom the report is provided or published. Section 26(3), as enacted, provided that the report shall be given to the Minister responsible for the public authority and the head of the authority and (in current language) where the public authority is a public sector employee, to the Department of Premier and Cabinet.

4. [296]

   The Ombudsman has a separate power (but no duty) to give a copy of the report to the complainant (where there is one) and to the public authority (presumably the individual officer or employee) to whose conduct the report relates. [81]

5. [297]

   There is further provision for reporting (as distinct from providing a copy of a s 26 report) in s 29 which, as enacted, provided as follows:

6. [298]

   That provision has been substantially re-enacted as subs (1) of the present provision, which extends the same powers with respect to other kinds of investigation (namely those not undertaken pursuant to a complaint under s 12).

7. [299]

   There is, and has always been, a power to make a “special report” for presentation to Parliament “on any matter arising in connection with the discharge of the Ombudsman’s functions.” [82] Originally, that report was made to the Minister; it is now to be made to the presiding officer of each House of Parliament. Section 31(2) provides that the Ombudsman may include in a special report, or a report under s 27, a recommendation that it be made public forthwith.

8. [300]

   So far as publicity is concerned, the Ombudsman and officers within the Ombudsman’s office are precluded by s 34 (subject to a range of exceptions) from disclosing any information obtained in the course of the office except with the consent of the person from whom the information was obtained, or for the purpose of prosecution for offences under s 37, or “for the purpose of discharging his or her functions under this or any other Act.” [83]

9. [301]

   These provisions do not in terms protect (or require the consent of) a person who may be adversely affected by the disclosure of such information. However, such disclosure would have to occur in the course of discharging a function. There are certain powers given to the Ombudsman with respect to the disclosure of information in the course of an investigation or an inquiry. [84]

(g) independence of office

1. [302]

   The Ombudsman is appointed by the Governor on the recommendation of the Minister, for a fixed term not to exceed seven years. [85] The Ombudsman is subject to removal by the Governor, upon the address of both Houses of Parliament. [86] The office of Ombudsman is a statutory office and not subject to provisions relating to the employment of public sector employees. [87] As enacted, officers and employees were appointed by the Governor, to enable the Ombudsman to perform his or her functions. [88] The language of appointment by the Governor is no longer used, but it is clear that both the Ombudsman and his or her officers are intended to have independence from other arms of government and are not subject to direction by a Minister.

2. [303]

   Whereas the Ombudsman is sought to be insulated from the executive arm of government, about which he or she hears complaints and investigates conduct, unlike the equivalent scheme in the United Kingdom, the Ombudsman is not made an adjunct of the legislature. The comparison appears from the following description given by Wade and Forsyth: [89]

3. [304]

   In one respect, the New South Wales Ombudsman has seen his position brought closer to the position of the UK Ombudsman, not in relation to the handling of complaints, but in relation to responsibility to the Parliament. Thus, in 1990, a new Pt 4A was inserted in the Ombudsman Act establishing a Joint Committee of each Parliament which has the function of monitoring and reviewing the exercise by the Ombudsman of the Ombudsman’s function under the Ombudsman Act and other Acts. [90] The Joint Committee is also “to report to both Houses of Parliament, with such comments as it thinks fit, on any matter appertaining to the Ombudsman or connected with the exercise of the Ombudsman’s functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed”. [91] It may include in a report “any change that the Joint Committee considers desirable to the functions, structures and procedures of the Office of the Ombudsman”. [92]

4. [305]

   The imposition of a function of monitoring and review on a committee of the Parliament has potential consequences for the scope of any element of judicial review to be undertaken by the Supreme Court. It is unlikely that Parliament intended that a legislative scheme would create the potential for conflicting results from judicial review and review by a Parliamentary Joint Committee.

5. [306]

   There have been other changes to the scheme of the legislation since its enactment. Although it remains true that the powers of the Ombudsman are limited to the making of findings and recommendations, the latter function has been extended in a way which was not contemplated in 1974, namely by the inclusion of a power to recommend “that compensation be paid to any person”. [93] At the same time, s 26A was introduced authorising the responsible Minister to make arrangements for the payment of compensation, where recommended by the Ombudsman in a report under s 26. Perhaps surprisingly, these amendments were included in a Miscellaneous Provisions Bill, in a schedule entitled “Minor amendments”. The effect of the amendment must be read in the context of the provision for a report if the Ombudsman “is not satisfied that sufficient steps have been taken in due time in consequence of a report under section 26”, pursuant to s 27. [94] Although the power in respect of compensation remains recommendatory, it provides a different flavour to the statutory scheme, albeit one shared with the UK Parliamentary Commissioner Act. In the UK, the courts, while not reviewing the recommendation, have reviewed the manner in which the Minister has dealt with the recommendation. [95]

(h) inferences from statutory scheme

1. [307]

   Although the parties quite properly addressed cases involving issues of construction of the Ombudsman Act, there was agreement that there was no authoritative statement answering the questions before this Court. It is appropriate, therefore, to consider the matter as one of statutory construction, before referring to the caselaw.

2. [308]

   There is no doubt that s 35A is a form of privative clause and limits the circumstances in which proceedings can be brought against the Ombudsman and his or her officers. As both parties accepted, the statement that the Ombudsman “shall not … be liable … to any civil or criminal proceedings” is in one sense ambiguous. It is not in the form of a standard privative provision which precludes review of a decision (and sometimes a purported decision) of a specified authority. [96] At least in form, it is closer to the protective provisions which prevent civil actions for damages against individual officers or authorities. For example, a member of the police force is “not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law”. [97] Yet the immunity from liability “to … proceedings” is emphatic; combined with the requirement for leave of the Supreme Court even in proceedings alleging bad faith, there is an apparent purpose to preclude any proceedings being brought as of right against the Ombudsman.

3. [309]

   In truth, s 35A is a hybrid. Not being limited to civil proceedings, it is not directed exclusively to civil liability and damages. Further, as the respondents noted, reference to “want of jurisdiction” indicates that civil proceedings should be understood to refer to judicial review proceedings in which a ground of want of jurisdiction may be raised, there being no cause of action in tort which would be satisfied by an act done in good faith in excess of jurisdiction. [98] On the other hand, provisions which protect from civil liability in damages are often restricted to acts done in good faith (or not in bad faith); the extension to include immunity from criminal proceedings might explain the reference to an exception in the case of bad faith, were it not that subss (2) and (3) envisage both civil and criminal proceedings falling within the bad faith exception.

4. [310]

   It is necessary to read s 35A in its statutory context. That suggests that deriving inferences as to the scope of the immunity by adopting a label revealing the broad purpose of the provision may be unhelpful. Context requires that ss 35A and 35B be read together. Section 35B envisages that the Supreme Court may properly be invited to determine any question as to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation. In other words, the limits of the Ombudsman’s jurisdiction are not entirely excluded from determination by the Supreme Court. Further, these provisions, which were introduced together, suggest that the true scope of s 35A may be revealed by the use of the past tense, namely proceedings in respect of “any act, matter or thing done or omitted to be done”. By contrast, the natural reading of s 35B is that it allows questions as to jurisdiction to be determined as they arise, but not after the event.

5. [311]

   Further, both provisions must be read in the light of s 35 which envisages that proceedings may be brought “under” either s 35A or s 35B, amongst a range of other statutory provisions, but not proceedings under s 69 of the Supreme Court Act. Section 35(1) is important because it renders the Ombudsman not only non-compellable (to give evidence or produce any document) in any legal proceeding, other than those which fall within subs (2), but also renders him or her incompetent. When enacted, s 35(1) applied to all legal proceedings other than proceedings under s 37 (being offences against the Ombudsman Act) or proceedings under Pt 3 of the Royal Commissions Act 1923 (NSW) (relating to offences under that Act). A blanket prohibition on giving evidence in legal proceedings is not readily limited to civil proceedings for damages, thereby supporting a construction of s 35A precluding proceedings for judicial review. It also supports a construction precluding proceedings for declaratory relief, whether properly identified as part of the supervisory jurisdiction of the Court, nor not. In other words, prior to the introduction of s 35A by the Ombudsman (Amendment) Act 1983 (NSW), the legislation did not anticipate the Ombudsman being involved in civil proceedings of any kind. It is appropriate to consider why that might be so.

6. [312]

   To address the last issue it is necessary to have regard to the institutional nature and functions of the Ombudsman’s office. [99] As has been noted by a number of commentators, the role of the Ombudsman does not fit happily within a governmental structure notionally divided into a tripartite separation of powers. Although the Ombudsman oversees the conduct of public authorities, it is a form of non-judicial review of administrative action with no power to provide relief to an individual who has suffered as a result of maladministration.

7. [313]

   The submissions as to the construction of ss 35 and 35A focused on general propositions as to the availability of judicial review by reference to the statutory language, read in the legislative and institutional context discussed above. On any view, the Ombudsman will be “liable … to” some forms of legal proceedings; so much is recognised by s 35(2), s 35A and s 35B. (For this purpose, the role of the Ombudsman or any officer in criminal proceedings may be disregarded.)

8. [314]

   There is no doubt that the phrase “civil proceedings” is broad enough to encompass judicial review proceedings, but whether it will do so will depend upon the statutory context. There are four reasons for supposing that the broad construction (encompassing immunity from proceedings in the supervisory jurisdiction of the Court) is to be preferred. First, and consistently with s 35, the Ombudsman will not be liable to be made a party to such proceedings in which he or she will not be competent to give evidence, nor be capable of producing documents, in accordance with s 35. Section 35 is not qualified by reference to the nature of the relief sought.

9. [315]

   Secondly, the express exclusion of proceedings brought “on the ground of want of jurisdiction or on any other ground” is consistent with an immunity from proceedings for judicial review. Other forms of civil proceeding are usually identified as “claims” or “causes of action”; the language of “grounds” is peculiar to proceedings for judicial review. Further, “want of jurisdiction” does not readily identify the basis of any civil claim other than one made in the context of judicial review, nor does it describe an offence for the purposes of criminal jurisdiction.

10. [316]

    Thirdly, the basis on which leave may be sought is limited to the terms of the exception, namely bad faith. Proceedings in relation to a civil claim or a criminal offence would normally include other essential elements; indeed, bad faith is unlikely to be an essential element. Yet no other element must be assessed to the standard of “substantial ground for the contention” required by s 35A(3). By contrast, bad faith is an established basis for setting aside an administrative decision in the supervisory jurisdiction.

11. [317]

    Fourthly, support for that conclusion may also be found in s 35B, which permits an application to the Supreme Court to determine a question as to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation. In principle, if the immunity provided by s 35A did not extend to proceedings in the supervisory jurisdiction of the Court, s 35B would be unnecessary. That the legislature considered that express provision was necessary is demonstrated by s 35B(4), which states that the section has effect “notwithstanding section 35A.”

12. [318]

    In combination these considerations, taken together with the function and role of the Ombudsman, go far to demonstrating that the immunity granted by s 35A(1) extends to proceedings in the supervisory jurisdiction of the Court.

13. [319]

    There remains a question as to whether there is a third category of proceedings, other than those envisaged by s 35A(2) and by s 35B. In its terms, the “immunity” conferred by s 35A(1) is subject to a limitation and an exception. The limitation is to be found in the requirement that the impugned conduct must have been done (or omitted to be done) “for the purpose of executing this or any other Act”. The exception is for acts or omissions “in bad faith.” No doubt the limitation and the exception should be understood as operating coherently; thus, conduct undertaken in bad faith is not conduct undertaken for the purposes of executing the Act, but for an improper or extraneous purpose. Read literally, the limitation may be wider and extend to acts which are done in good faith, but not for the purpose of executing an Act.

14. [320]

    The explanation for the limitation lies in the fact that the Ombudsman will have implied powers to do things (such as administrative tasks, including the employment of staff) which do not involve the execution of the Act, but do not involve an extraneous (in the sense of improper) purpose: see the cases of Laughton and Micro Focus discussed at [340] – [343] below. Section 35A does not confer immunity in relation to such activities. In this aspect it mirrors the scope of provisions protecting officers and agencies from civil liability. [100]

15. [321]

    Otherwise the possibility that the immunity provided by s 35A(1) does not apply (i) to acts done for an extraneous purpose, but in good faith, and (ii) to acts done in bad faith, does not work harmoniously with subss (2) and (3). The latter provisions, referring to proceedings brought with respect to acts or omissions referred to in subs (1), assume that the proceedings are brought in respect of acts done in bad faith, which subs (1) expressly envisages. There is no room for proceedings in relation to action taken (or not taken) otherwise than for the purpose of executing an Act, but not in bad faith, falling within s 35A. What is striking about s 35A is that even proceedings for acts done in bad faith cannot be brought without leave of the Supreme Court.

16. [322]

    It is sufficient to conclude that, in terms of principle (as opposed to authority), the present proceedings, not having been brought with leave of the Supreme Court pursuant to s 35A(2), must fail.

Grant of leave under s 35A

1. [323]

   Given these conclusions, it is necessary to consider, in terms of question 1(b), whether the Court has power “to grant leave pursuant to s 35A(2) nunc pro tunc following a hearing on the merits of the Further Amended Summons”.

2. [324]

   The form of s 35A is inconsistent with any such power. It commences (subs (1)) with an immunity from liability “to any … proceedings”, subject to an exception (bad faith); it then provides (subs (2)) that proceedings “shall not be brought” without the leave of the Court. That, by implication, is a further prohibition, namely with respect to proceedings which fall within the bad faith exception in subs (1). The second prohibition is not absolute but subject to being lifted pursuant to leave. Further, the power to grant leave is also expressed as a prohibition, subject to an exception. The condition imposed on the exception in subs (3), namely that there is “substantial ground” for the contention that the exception in subs (1) is engaged, is not consistent with an application for leave being made after the hearing.

3. [325]

   Consistent with that reading of s 35A, there is a need to determine in particular proceedings whether the Ombudsman is competent or compellable to give evidence pursuant to s 35. The immunity of the Ombudsman is only lifted (relevantly) in relation to legal proceedings brought “under” s 35A. Until leave is given, proceedings would not satisfy that description. Accordingly the Ombudsman would remain incompetent and non-compellable. Although the proceedings might be difficult for an applicant to run in that situation, it would also be potentially grossly unfair to force the Ombudsman to defend proceedings in which he cannot give evidence or produce documents. The only rational conclusion is that proceedings under s 35A can only be brought pursuant to leave granted in advance. The applicant in fact produced no submissions supporting any contrary reading of these provisions. It follows that question 1(b) must be answered “no”.

Judicial review of decisions of Ombudsman – caselaw

1. [326]

   Having concluded that as a matter of statutory construction the present proceedings must fail under s 35A, it is convenient to examine the relevant caselaw. The earliest reported case under the Ombudsman Act was Boyd v The Ombudsman, [101] which involved an attempt to prevent a further investigation of a complaint of police misconduct in circumstances where the Police Regulation (Allegations of Misconduct) Act 1978 (NSW) precluded an individual from making multiple complaints about the conduct of a police officer. While the Court held that the relevant provision did not constrain the functions of the Ombudsman, it is likely that, had it been necessary to consider the proceedings in light of the present legislation, they would have fallen within the terms of s 35B. The police officer who sought to constrain the further exercise of the Ombudsman’s powers was an interested party, who raised a question as to the jurisdiction of the Ombudsman to conduct an investigation. In any event, the case did not turn on that provision, as neither s 35A nor s 35B had then been enacted. The decision in Boyd v The Ombudsman was affirmed on appeal. [102]

2. [327]

   The second case was Moroney v The Ombudsman, [103] in which declarations were made to the effect that the Ombudsman was not entitled to report that he had “not been able to satisfy [himself] whether or not the complaint [had] been sustained” [104] and that he was required to come to either an affirmative or a negative conclusion.

3. [328]

   On the point of statutory construction, the decision of the primary judge was reversed by the Court of Appeal. [105] There was no discussion in the Court of Appeal judgment of the availability of relief, had the construction proposed by the complainant been upheld. Hutley JA accepted that the report was not a report of the kind required by the Act, but that the declarations made failed to reflect the correct legal situation. In proposing alternative orders, Hutley JA did not advert to any issue of principle relating to the availability of relief.

4. [329]

   Sections 35A and 35B were introduced into the Ombudsman Act by the Ombudsman (Amendment) Act 1983 (NSW) which commenced on 31 December 1983. [106] The first reported case to consider the operation of those provisions was Ainsworth v The Ombudsman, [107] a judgment delivered on 2 March 1988 (apparently ex tempore). Enderby J noted that senior counsel for the Ombudsman had taken the Court to the second reading speech of the Premier (Neville Wran QC) in relation to the amending Bill which asserted that the new provisions would “bring New South Wales into line with the law in other States and the Commonwealth.” [108]

5. [330]

   Enderby J thought it appropriate to consider the history of litigation in New South Wales (set out above) and, in particular, a decision of O’Leary J in the Northern Territory Supreme Court, Alice Springs Town Council v Watts. [109] That case considered s 31 of the Ombudsman (Northern Territory) Act 1980 (NT) which was in substantially the same terms as s 35A, although it also contained an express prohibition on the issue of any prerogative writ in the nature of prohibition or mandamus. In Watts, declarations had been claimed in respect of the alleged unlawfulness of an investigation undertaken by the Ombudsman, on the basis that it was outside his jurisdiction or power and that he had failed to comply with rules of procedural fairness. [110] Because the proceedings were merely for declarations, no reliance was placed on the prohibition against prerogative relief. However, O’Leary J held that the proceedings could not stand in the light of s 31(1), being the equivalent of s 35A(1) of the NSW Act. [111]

6. [331]

   It is convenient to note that the omission from the NSW Act of a prohibition on the grant of relief in the nature of certiorari or prohibition was inconsequential. It was probably deemed to be unnecessary, based on the reasoning of Stephen J in Ex parte ACTU-Solo [112] that such relief could not lie with respect to functions which were merely recommendatory and did not have legal consequences for the rights or interests of individuals, a view confirmed in Ainsworth v Criminal Justice Commission. [113]

7. [332]

   The reasoning of Enderby J was applied by Sackville AJ in Commissioner of Police v The Ombudsman, [114] a case in which claims of procedural unfairness were made with respect to an investigation conducted by the Ombudsman, together with an allegation that a report critical of the Commissioner would exceed the Ombudsman’s powers.

8. [333]

   Sackville AJ noted the circumstances in which the proceedings arose. In 1988, Raymond John Denning, while serving a life sentence, had become a police informer. In 1991, pursuant to a scheme administered by the Police, he was identified as a person requiring witness protection. He was released from prison on 21 April 1993, steps being taken to provide police protection. However, that arrangement ceased on 5 May 1993. On 10 June 1993 Mr Denning made a complaint to the Ombudsman about the decision to exclude him from the program. He died the following day. On 7 July 1993 a member of his family lodged a complaint with the Ombudsman about the decision to remove him from the program.

9. [334]

   A draft report prepared by the Ombudsman and provided to the Commissioner included findings that the Commissioner’s conduct was “unreasonable” and “oppressive” within the meaning of s 26(1)(b) of the Ombudsman Act. The Commissioner complained that those findings should not have been made, being based on material which had not been provided to him, including discussions with Associate Professor Mark Findlay of the Institute of Criminology at the University of Sydney (who had provided a threat assessment and risk analysis), and a record of discussions with prisoners in relation to protection practices and procedures.

10. [335]

    Sackville AJ held that the proceedings were precluded by s 35A of the Ombudsman Act and should therefore be dismissed. Sackville AJ considered in detail the reasoning of Enderby J in Ainsworth and expressed agreement with it. He continued:

11. [336]

    After referring to a passage from the judgment of Milvain CJ in Re Alberta Ombudsman Act, [115] quoted by Lee J in Moroney, [116] Sackville AJ continued:

12. [337]

    On these authorities, the proceedings instituted by the applicant would necessarily be dismissed. However, the Ombudsman submitted that there was further authority in this Court in support of a similar conclusion. The first of the two cases relied upon was The Ombudsman v Koopman. [117]

13. [338]

    Koopman concerned an application to the Administrative Decisions Tribunal seeking a review of the conduct of a public sector agency which, it was alleged, had revealed personal information about the person seeking review. In this case the relevant public sector agency was the Ombudsman. Mr Koopman accepted that the application for review in the Tribunal constituted “civil proceedings” for the purposes of s 35A of the Ombudsman Act. The issue was whether the right of review given under s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) provided, by implication, an exception to s 35A of the Ombudsman Act. The Court held that it did not.

14. [339]

    Koopman did little to assist in the resolution of the present proceedings. The kind of review in question, although vested in a Tribunal, was not of the same kind as the supervisory jurisdiction of the Supreme Court. Further, the fact that such proceedings fell within s 35A of the Ombudsman Act was not in contention.

15. [340]

    The second case, The Ombudsman v Laughton, [118] involved an appeal from a decision of the Government and Related Employees Appeals Tribunal (“GREAT”) by an unsuccessful applicant for a job in the Ombudsman’s Office. The attempt by the Ombudsman to claim immunity pursuant to s 35A was rejected. Spigelman CJ identified the issue as involving a “tension” between two provisions of the Ombudsman Act, namely s 32, empowering the Ombudsman to employ staff under and subject to the Public Sector Management Act 1988 (NSW), and the immunity under s 35A. [119] The right of appeal to GREAT in respect of the appointment of another person to fill a vacant office arose under s 20 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW). The Chief Justice resolved the tension in the following manner: [120]

16. [341]

    Handley JA and I treated s 35A as analogous to a privative or protective provision. [121] The applicant relied upon a comment in my judgment in the following terms: [122]

17. [342]

    There is no reason to place any weight on a tentative view expressed in relation to a point which was not argued. Those qualifications were not idle words in an ex tempore judgment. In any event, the two points of distinction drawn from Ainsworth demonstrate why Laughton is of little relevance in the present case. First, there was the distinction between a review of an administrative determination by a tribunal and the exercise by the Supreme Court of its supervisory jurisdiction; further, there was the difference between the exercise of a power of appointment of an officer and the execution of powers with respect to investigation of potentially wrongful conduct.

18. [343]

    The conclusion in Laughton that the words “for the purpose of executing this or any other Act” in s 35A did not extend to the employment of staff was applied in Micro Focus (US) Inc v New South Wales [123] to a question involving reproduction of a computer program said to be in breach of the applicant’s copyright. Jagot J held that “the act of copying software onto a computer without the licence of the owner of the copyright in the software is not something which either the Ombudsman Act or the Police Act requires or authorises to be done.” [124] That limitation on the operation of s 35A must be accepted, but does not assist the applicant.

19. [344]

    Finally, the applicant noted that in Botany Council v The Ombudsman [125] this Court declined to address the operation of s 35A in circumstances where the challenge to the lawfulness of the actions of the Ombudsman was dismissed as “misconceived”. [126] The only support which the applicant could derive from this case was the statement by Kirby P that the application of s 35A to bar judicial review was “sufficiently controversial to warrant postponing those questions to an appeal where the application of the sections must be decided.” [127]

20. [345]

    The reasoning of Enderby J in Ainsworth and of Sackville AJ in Commissioner of Police support a conclusion that the supervisory jurisdiction of the Court cannot be invoked after the Ombudsman has completed the statutory functions of investigation and report to seek to set aside specific findings in a report. While both these decisions were delivered some years before the approach to privative clauses which crystallised in Plaintiff S157 in 2003, these authorities support the conclusion that the present proceedings fell foul of the prohibition in s 35A. It is now necessary to turn to the question raising the issue of constitutional invalidity.

Constitutional validity

1. [346]

   The applicant submitted that if s 35A relevantly precluded the exercise in the supervisory jurisdiction of this Court which he sought to invoke, then the section was invalid. That followed, the submission continued, because the effect of s 35A was to diminish in a material respect that supervisory jurisdiction which constituted an essential characteristic of the Supreme Court which was, in turn, an essential element of the appellate jurisdiction of the High Court pursuant to s 73 of the Constitution.

2. [347]

   As the Attorney General contended, those submissions ran into difficulty at a number of levels. It was clear that, while the availability of relief to ensure that courts and other statutory authorities did not exceed the limits of their powers formed part of the supervisory jurisdiction, that jurisdiction did not extend to review of conduct which had no direct effect on individual rights and did not impose liabilities. So much was recognised in Ainsworth v Criminal Justice Commission in refusing relief in the nature of certiorari or mandamus in relation to a report which of itself had no legal effect, carried no legal consequences and was not a step in a process capable of altering rights, interests or liabilities. [128] Recognising that constraint, the applicant relied upon his claims for declaratory relief. He maintained that such relief was available as part of the constitutionally protected jurisdiction of the Supreme Court in relation to the adverse practical consequences which the publication of the report had had on his reputation.

3. [348]

   The applicant accepted that his submissions as to constitutional invalidity required an expansion of the reasoning of the High Court in Kirk v Industrial Court in two, inter-related, respects. First, the exercise of supervisory jurisdiction in Kirk related to a judgment of the Industrial Court of New South Wales, a body exercising judicial functions and with undoubted power to affect the rights and interests of individuals. Indeed, the jurisdiction in question was criminal and affected both Mr Kirk and his company. Thus the Court identified the relevant legislation as a provision “which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error”. [129] This case does not involve control of an inferior court, nor a tribunal, nor any other body exercising judicial power or quasi-judicial power.

4. [349]

   Secondly, the Court identified the power of the Supreme Court by reference to the grant of relief “in the nature of prohibition and mandamus, and … also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error.” [130] As the Ombudsman pointed out, declaratory relief had been sought in Kirk, but the Court’s identification of the constitutionally protected jurisdiction did not extend so far. The Court identified the supervisory jurisdiction as a defining characteristic of a Supreme Court by reference to the scope of the jurisdiction to grant certiorari at Federation. [131] That formulation was repeated in Public Service Association of South Australia Inc v Industrial Relations Commission (SA). [132] No such relief was sought or available in the present case. The prerogative writs did not in 1901, and still do not, provide a basis for reviewing decisions of statutory authorities which do not affect legal rights or interests in the way described above.

5. [350]

   In written submissions, the Ombudsman referred to the statement of Atkin LJ as to the reach of the prerogative writs of prohibition and certiorari in 1924, in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd: [133]

6. [351]

   This statement is no longer treated as canonical; [134] there is at least ambiguity as to the meaning of “the duty to act judicially”. In the 19th century, neither practice nor legal language made a clear distinction between judicial and administrative acts. [135] Rather, as explained by Brett LJ in 1882, the prerogative writs ran to any body, other than a superior court, in which the legislature had vested “the power of imposing an obligation upon individuals”, so that the courts “ought to exercise as widely as they can the power of controlling those bodies if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.” [136]

7. [352]

   Despite the constrained language in which the limitation on legislative power was expressed in Kirk and Public Service Association (SA), and the limited scope of the submissions supporting an extension of the limitation, it is desirable to explain further the scope of the supervisory jurisdiction in the United Kingdom in 1900. In 1848 three Acts known by the name of the Attorney General of the day, John Jervis, imposed what were thought to be tight controls on review of decisions by magistrates exercising summary jurisdiction. As Professor Stuart Anderson has explained, “Jervis’s Acts finally stultified certiorari as a means to address errors of law within jurisdiction and removed most of the opportunities to use tort actions against enforcers to reopen the validity of upstream decisions.” [137] Nevertheless, writing in 1888, Maitland stated: [138]

8. [353]

   The key cases around 1900 were Cooper v Wandsworth Board of Works [140] and Board of Education v Rice. [141] Arguably a critical element underlying this jurisdiction was not the form of the relief available, but rather the fact that legal rights or liabilities had to be affected or imposed in order to attract the basis on which relief would be granted, namely procedural unfairness. For this reason, there is no historical basis for the proposition that an essential characteristic of a State Supreme Court, in 1900, was to grant any form of relief with respect to conduct of an administrative officer which did not affect legal rights or impose legal liabilities.

9. [354]

   No caselaw was relied upon for the proposition that a declaration would have been available in those circumstances. Indeed, even in relation to established private rights and interests, there is no acceptance of the proposition that a bare declaration was available in circumstances where no other relief could be sought. [142] Rather, the availability of bare declaratory relief in support of private interests is best understood as dependent upon statutory intervention. [143]

10. [355]

    The turning point heralding a new willingness to grant bare declarations was Dyson v Attorney General, [144] decided in 1911. Declaratory relief was seen as the proper method of testing the validity of the power of the tax office to require detailed information from individuals as to their property and business interests. This case disposed of the reluctance to grant relief against the Crown, otherwise than pursuant to a petition of right (a procedural concern), but also the separate reluctance to provide what could be seen as in the nature of an advisory opinion in circumstances where no right or obligation had crystallised. [145] In Gouriet v Union of Post Office Workers [146] Lord Wilberforce said that “there is no support in authority for the proposition that declaratory relief can be granted unless the plaintiff, in proper proceedings, in which there is a dispute between the plaintiff and the defendant concerning their legal respective rights or liabilities either asserts a legal right which is denied or threatened, or claims immunity from some claim of the defendant against him or claims that the defendant is infringing or threatens to infringe some public right so as to inflict special damage on the plaintiff.” [147] The present case is concerned with private, not public, rights.

11. [356]

    Zamir and Woolf conveniently identify a number of cases involving public law in which declarations were granted. [148] The authors note that at 1901 there were many authorities asserting that a declaration could only be made in respect of a legal right, [149] or where there was a cause of action. [150]

12. [357]

    Although in Ainsworth v Criminal Justice Commission, the High Court stated that the power to grant declaratory relief formed part of the “inherent jurisdiction” of the High Court (and presumably the Queensland Supreme Court), [151] no authority was identified in support of the proposition that such a jurisdiction existed in 1901 to deal with any breach of procedural fairness by a body with no power to make a decision affecting legal rights and interests.

13. [358]

    A more nuanced approach is required than that adopted by the applicant in relation to this issue. In Futuris, dealing with the Income Tax Assessment Act 1936 (Cth), the joint reasons in the High Court noted that the significance of a conclusive evidence provision (s 177), read in the context of a privative provision (s 175), lay in the approach explained in Project Blue Sky. [152] Thus, the issue was to determine “whether it is a purpose of the Act that a failure by the Commissioner in the process of assessment to comply with provisions of the Act renders the assessment invalid; in determining that question of legislative purpose regard must be had to the language of the relevant provisions and the scope and purpose of the statute.” [153] Adopting that approach, the joint judgment continued: [154]

14. [359]

    Section 175 was held not to encompass “deliberate failures to administer the law according to its terms.” [155] Such failures manifested jurisdictional error and therefore attracted relief by way of the constitutional writs. [156]

15. [360]

    In the present case, the construction adopted above has a similar effect; namely, that failure to comply with procedural requirements, falling short of deliberate failures to administer the statutes conferring powers on the Ombudsman, will not constitute jurisdictional error and will therefore not attract the constitutionally protected jurisdiction of this Court. In Futuris, it may be inferred that the analogous finding was acceptable because the taxpayer was not left without a remedy, which might ultimately find its way to a Chapter III court, in seeking to challenge a liability to pay tax, which the Commissioner sought to impose by an assessment. In the present case, no report or recommendation of the Ombudsman, nor a finding of maladministration, can impose legal liabilities on any member of the public or any employee in the public service. The conclusion reached below, that there is no constitutional invalidity, arrives at the same result by a different, but consistent, approach.

16. [361]

    As this Court noted in Trives v Hornsby Shire Council, [157] any expansion of the principle established in Kirk beyond its sphere of operation should be undertaken with caution. That is because Kirk identified an irreducible characteristic of State Supreme Courts by reference to what was understood to be the scope of the supervisory jurisdiction in 1901. Further restraints on the legislative power of State Parliaments can only be imposed on a similar principled basis. None was identified in the present case. The impugned provisions are not invalid.

Application under s 35B of the Ombudsman Act

1. [362]

   In the event that the Court upheld the immunity of the Ombudsman from proceedings by reason of s 35A(1), the applicant relied in the alternative on the power to raise a question as to the jurisdiction of the Ombudsman to conduct an investigation pursuant to s 35B. It is not in doubt that that provision has effect notwithstanding s 35A. [158] The applicant is a person interested for the purposes of s 35B(3) and therefore entitled to bring proceedings under s 35B(1).

2. [363]

   In its further amended summons, the applicant relied upon this basis for an application to the Supreme Court only with respect to the following relief:

3. [364]

   That claim was said to fall within the scope of s 35B because it squarely raised the issue as to whether it was within the Ombudsman’s power “to embark upon such an investigation”. [159] However, little more was said in support of that submission.

4. [365]

   The Ombudsman challenged reliance on s 35B for that purpose in circumstances where, before the application was made, the investigation had been completed and, in any event, the investigation was well underway when the conduct complained of was undertaken. If the first ground of objection is good (as it is) it is not necessary to determine the second ground.

5. [366]

   The language of ss 35A and 35B reveal how they were intended to fit together. As has been noted, s 35A is concerned with proceedings in respect of an act, matter or thing “done, or omitted to be done” whereas s 35B is concerned with conduct “which is the subject of the investigation or proposed investigation” (s 35B(3)(a)); s 35B also refers in the present tense to the circumstance where “any question arises” (s 35B(1)) and where “the investigation arises” (s 35B(3)(c)). The present tense is consistently used throughout s 35B. While s 35B(1) suggests that the raising of the question for the consideration of the Court should precede the conduct of the investigation, other language suggests that an investigation may already be on foot.

6. [367]

   Accordingly, it may have been open to the applicant to challenge the jurisdiction of the Ombudsman in the course of the investigation, for example when he became aware of the scope of the proposed investigation so far as it concerned his conduct. However, it is clear that s 35B does not envisage a challenge to jurisdiction after the completion of an investigation. Such a reading would not only be inconsistent with the language of the two sections, but would make it difficult, if not impossible, to reconcile the two provisions. Section 35B would effectively demolish the preceding provision.

7. [368]

   The applicant’s attempt to rely upon s 35B to justify the claim in par 11 of the summons (or indeed in any other part of the summons) must be rejected.

The notices to produce documents

1. [369]

   If the proceedings fall within the immunity conferred by s 35A, they will, presumably, in due course be dismissed as incompetent. In that circumstance, the issues raised with respect to the notices to produce fall away. As that is the conclusion reached above in respect of the operation of s 35A (and its validity) little need be said about the question with respect to production of documents, particularly as the terms of s 35 have already been considered.

(a) statutory protection from production

1. [370]

   Section 35 of the Ombudsman Act and s 165 of the Police Act (prior to 1 July 2017) were relevantly in similar (though not identical) terms; it is sufficient to consider the language of s 35. That section renders both the Ombudsman and officers in the office of the Ombudsman (other than members of the Police Force) incompetent and non-compellable to give evidence or produce documents in any legal proceeding. There are two qualifications. The first is that the subject matter of any subpoena or notice must be in respect of any information obtained by the person “in the course of the … office”, which must mean in the course of exercising the functions of the office. Although it was submitted that certain limited categories of documents fell outside that limitation, that raised an issue of fact which cannot properly be dealt with in answering the stated questions. (Arguably the reference to information obtained in the Ombudsman’s office has the same operation as the limitation in s 35A to things done for the purpose of executing the Ombudsman’s statutory functions.)

2. [371]

   The second limitation arises from the statement in s 35(2) that subs (1) “does not apply to any … proceedings under section … 35A, 35B or 37”. The applicant submitted that the exclusion of proceedings “under” s 35A allowed for the production of documents with respect to any proceeding which did not fall within the scope of the immunity. However, that is a strained reading of s 35(2)(a) and should not be accepted. Section 35A expressly envisages proceedings being brought against the Ombudsman, with leave of the Supreme Court, in reliance upon the bad faith exception. That was not invoked in the present case and accordingly the limitation in s 35(2) was not engaged.

3. [372]

   The result is that, unless the present proceedings are available under s 35A, the Ombudsman will not be compellable to produce the documents sought.

(b) validity of ss 35 and 165

1. [373]

   The applicant asserted that if s 35 (and s 165 of the Police Act) had the effect identified above, they were invalid because they impermissibly curtailed the Court’s ability to determine whether the Ombudsman had “committed jurisdictional error”, with the consequence that the provisions “offend the institutional integrity of the Supreme Court in contravention of the principle in Kirk.” [160] (Kirk was concerned with protecting the essential jurisdiction of a State Supreme Court; the language of “institutional integrity” is usually associated with Kable v Director of Public Prosecutions (NSW). [161] )

2. [374]

   In A v Independent Commission Against Corruption [162] the Court considered a similar provision in the Independent Commission Against Corruption Act 1988 (NSW), s 111(3) which provided that an officer of the Commission shall not be required:

3. [375]

   There were exceptions, but not in relation to proceedings in the supervisory jurisdiction of the Court. After referring to the principles underlying Kirk, I said: [163]

4. [376]

   In circumstances where it could not be said that the Court would be deprived of all relevant information, the applicant “failed to demonstrate a level of constraint on the supervisory jurisdiction of the court sufficient to establish that s 111 intrudes impermissibly on the constitutionally guaranteed jurisdiction of the court.” [164] In the present case, the applicant complains of procedural unfairness in relation to specific aspects of the Ombudsman’s investigation. One would expect his case to depend upon his own evidence as to what he was or was not told in the course of the investigation and as to the questions he was asked and the information he supplied. To the extent that the Ombudsman would not be able to respond with relevant material, that is not something about which the applicant seeks to complain. (As noted above, it may however be an indication that the present proceedings were not envisaged by the drafter of the legislation.)

5. [377]

   Similarly, unless the applicant has independent evidence of bias, a challenge based on that ground will not succeed; a notice to produce seeking to establish that ground would have the hallmarks of a fishing expedition. Even if it did not, it is difficult to see how the control imposed by s 35 could be said to prevent the Court exercising the presumptively available supervisory jurisdiction.

6. [378]

   Question 4, dealing with the notices to produce, addresses separately the notices issued to the Ombudsman on 6 December 2016 and to both the Ombudsman and the former Ombudsman on 17 January 2017. If some point arises because s 35(1) refers only to the Ombudsman and an officer of the Ombudsman, it may be noted that, from 5 March 2015, s 35(3) was amended so that subs (1) thereafter applied to a former Ombudsman and a former officer of the Ombudsman. [165]

Conclusions

1. [379]

   On the basis of the reasoning set out above, I would make the following orders:

   1. (1)

      The questions referred for determination by the Court should be answered as follows:

   2. (2)

      The applicant (Naguib Kaldas) should pay the costs of the proceedings in this Court of the first and second respondents (Bruce Barbour and the Ombudsman) and of the third respondent (Linda Waugh).

2. [380]

   MACFARLAN JA: I agree with the judgment of Basten JA, save in relation to his Honour’s construction of s 35B of the Ombudsman Act (see [362]-[368]) above. On that issue, I agree with Bathurst CJ’s reasoning (see [147]-[149] above). I agree also with the orders proposed by Basten JA.