Request for advice to Minister where Minister advising Governor-General regarding petition for exercise of Royal Prerogative of Mercy—during investigation and review convicted person instigated related court proceedings—contempt of court to disclose information—not appropriate to recommend release of any information—investigation discontinued
The requester sought advice provided to the Minister of Justice, in a matter where it was the responsibility of the Minister to advise the Governor-General upon a petition for the exercise of the Royal Prerogative of Mercy.
At the time of the investigation the Governor-General had received the Minister’s advice, but had not made a final decision. By an Order in Council made pursuant to section 406(b) of the Crimes Act 1961, the Governor-General had referred certain points to the Court of Appeal for consideration.
During the course of the investigation the convicted person applied for judicial review of the Order in Council by which his conviction had been referred to the Court of Appeal. The requested information was directly relevant to the judicial review proceedings, and release of it at that time would have amounted to contempt of Court.
Under the OIA, it is the function of an Ombudsman to investigate and review the refusal of a request on the basis of the circumstances that pertained at the time of the decision on the request. On that approach, the final opinion upon the complaint might have been that some or all of the information at issue should have been made available. However, a recommendation for release of the information would have been inappropriate as the disclosure would have amounted to contempt of Court.
Section 17(1)(b) of the Ombudsmen Act 1975 provides Ombudsmen with the option of refusing to investigate a complaint further where it appears, during the course of inquiries, that further investigation is unnecessary in the circumstances of the particular case. In the circumstances, further investigation of the complaint was deemed unnecessary as it would have served no useful purpose to proceed to reach a final opinion.
Comment
Section 17(1)(b) of the Ombudsmen Act is now section 17(1)(f)(ii).
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.