（It is adopted on 26 September 1984.）

Be it Enacted by the Parliament of the Cook Islands in Session assembled, and by the authority of the same as follows:
1. Short Title and commencement –

(1) This Act may be cited as the Ombudsman Act 1984.
(2) This Act shall come into force on a date to be notified in the Gazette.
2. Interpretation – In this Act, unless the context otherwise requires,-

“Ombudsman”, in relation to any function, power, or duty under this Act, means the Ombudsman for the time being investigating the complaint in respect of which the function, power, or duty is being exercised.

OMBUDSMAN

3. Ombudsman –

(1) There may be appointed, an Ombudsman, who shall be an officer of and responsible to Parliament.
(2) Subject to the provisions of section 7 of this Act, the Ombudsman shall be appointed by the Queen’s Representative on the advice of the Prime Minister who shall convey the recommendations of Parliament.
(3) No person shall be deemed to be employed in the service of Her Majesty for the purposes of the Public Service Act 1975 by reason of his appointment as an Ombudsman.
4. Ombudsman to hold no other office – The Ombudsman shall not be capable of being a member of Parliament or of an Island Council, and shall not, without the approval of the Prime Minister, hold any office of trust or profit, other than his office as the Ombudsman, or engage in any occupation for reward outside the duties of his office.
5. Term of office of Ombudsman –

(1) Except as otherwise provided in this Act, the Ombudsman shall hold office for a term of 3 years.
(2) Unless his office sooner becomes vacant, every person appointed as an Ombudsman shall hold office until his successor is appointed. Every such person may from time to time be reappointed.
(3) The Ombudsman may at any time resign his office in writing addressed to the Speaker of Parliament or to the Prime Minister if there is no Speaker or the Speaker is absent from the Cook Islands, and shall so resign his office on attaining the age of 72 years.
6. Removal or suspension from office –

(1) The Ombudsman may be removed from office for inability to discharge the functions of his office (whether arising from infirmity of body or mind or from any other cause) or misbehaviour by the Queen’s Representative on the advice of the Prime Minister who shall convey the recommendation of Parliament.
(2) The Ombudsman may be suspended from the Queen’s Representative in Executive Council for inability to discharge the functions of his office (whether arising from infirmity of body or mind or from any other cause) or misbehaviour proved to the satisfaction of the Queen’s Representative but any such suspension shall not continue in force beyond 2 months after the commencement of the next ensuing session of Parliament.
7. Filling of vacancy –

(1) If the Ombudsman dies, or resigns his office, or is removed from office, the vacancy thereby created shall be filled in accordance with this section.
(2) If any vacancy in the office of the Ombudsman occurs at any time while Parliament is in session, it shall be filled by the appointment of an Ombudsman by the Queen’s Representative on the advice of the Prime Minister who shall convey the recommendation of Parliament.
Provided that if the vacancy occurs less than 2 months before the close of that session and no such recommendation is made in that session, the provisions of subsection (3) of this section shall apply as if the vacancy had occurred while Parliament was not in session.
(3) If any such vacancy occurs at any time while Parliament is not in session, the following provisions shall apply:

(a) The Queen’s Representative in Executive Council may appoint an Ombudsman to fill the vacancy, and the person so appointed shall, unless his office sooner becomes vacant, hold office until his appointment is confirmed by Parliament;

(b) If the appointment is not so confirmed within 2 months after the commencement of the next ensuing session, the appointment shall lapse and there shall be deemed to be a further vacancy in the office of the Ombudsman.

8. Salaries and allowances of Ombudsman –

(1) There shall be paid to the Ombudsman out of the Government Account, without further appropriation than this section, a salary at such rate as the Queen’s Representative, by Order in Council, from time to time determines.
(2) The salary of the Ombudsman shall not be diminished by an Order in Council under this section during the continuance of his appointment.
(3) Any Order in Council under this section, and any provision of any such Order, may be made so as to come into force on a date to be specified in that behalf in the Order, being the date of the making of the Order or any other date, whether before or after the date of the making of the order or the date of the commencement of this Act.
(4) Every Order in Council under this section, and every provision of any such order, in respect of which no date is specified as aforesaid shall come into force on the date of the making of the order.
(5) There shall be paid to the Ombudsman, in respect of time spent in travelling in the exercise of his functions, travelling allowances and expenses in accordance with the Civil List Act 1984, and the provisions of that Act shall apply accordingly as if the Ombudsman were a Minister.
9. Oath to be taken by Ombudsman – Before entering upon the exercise of the duties of his office the Ombudsman shall take an oath before the Speaker or Clerk of Parliament, namely:

I will faithfully and impartially perform the duties of my office and that I will not, except where I am required to do so by enactment of the Parliament of the Cook Islands, divulge any information received by me in the performance of my functions.

10. Staff –

(1) Subject to the provisions of this section, the Ombudsman may appoint such officers and employees as may be necessary for the efficient carrying out of his functions, powers, and duties under this Act.
(2) The number of persons that may be appointed under this section, whether generally or in respect of any specified duties or class of duties, shall from time to time be determined by the Minister for Parliamentary Services.
(3) The salaries of persons appointed under this section and the terms and conditions of their appointments, shall be such as are approved by Cabinet.
(4) No person shall be deemed to be employed in the service of Her Majesty for the purposes of the Public Service Act 1975 by reason of his appointment under this section.

FUNCTIONS OF OMBUDSMAN

11. Functions of Ombudsman –

(1) It shall be a function of the Ombudsman to investigate any decision or recommendation made, or any act done or omitted, whether before or after the passing of this Act, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by any of the Departments or organisations specified in the Schedule to this Act, or by any officer, employee, or member of any such Department or organisation in his capacity as such officer, employee, or member.
(2) Without limiting the generality of subsection (1) of this section, it is hereby declared that the power conferred by that subsection includes the power to investigate a recommendation made, whether before or after the passing of this Act, by any such Department or organisation or any committee, subcommittee, officer, employee, or member thereof.
(3) The Ombudsman may make any such investigation either on a complaint made to him or of his own motion; and where a complaint is made he may investigate any decision, recommendation, act or omission to which the foregoing provisions of this section relate, notwithstanding that the complaint may not appear to relate to that decision, recommendation, act, or omission.
(4) Without limiting the preceding provisions of this section, it is hereby declared that any Committee of Parliament may at any time refer to the Ombudsman for investigation and report by him, any petition that is before that Committee for consideration, or any matter to which the petition relates. In any such case, an Ombudsman shall, subject to any special direction of the Committee, investigate the matters so referred, so far as they are within his jurisdiction, and make such report to the Committee as he thinks fit. Nothing in section 15 or section 20 or section 22 of this Act shall apply in respect of any investigation or report made under this subsection.
(5) Without limiting the foregoing provisions of this section, it is hereby declared that at any time the Prime Minister may refer to the Ombudsman for investigation and report any matter, other than a matter concerning a judicial proceeding, which the Prime Minister considers should be investigated by the Ombudsman. Where a matter is referred to an Ombudsman pursuant to this subsection, he shall, notwithstanding anything to the contrary in this Act, forthwith investigate the matter and report thereon to the Prime Minister, and may thereafter make such report to Parliament on the matter as he thinks fit. Nothing in section 20 of this Act shall apply in respect of any investigation or report made under this subsection.
(6) The powers conferred on the Ombudsman by this Act may be exercised notwithstanding any provision in any enactment to the effect that any such decision, recommendation, act, or omission shall be final, or that no appeal shall lie in respect thereof, or that no proceeding or decision of the person or organisation whose decision, recommendation, act, or omission it is shall be challenged, reviewed, quashed, or called in question.
(7) Nothing in this Act shall authorise the Ombudsman to investigate-

(a) Any decision, recommendation, act, or omission in respect of which there is under the provisions of the Constitution or any Act or regulation, a right of appeal or objection, or a right to apply for a review, available to the complainant, on the merits of the case to any Court, or to any tribunal constituted by or under any enactment, whether or not that right of appeal or objection or application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired:

Provided that the Ombudsman may conduct an investigation (not being an investigation relating to any decision, recommendation, act, or omission to which any other paragraph of this subsection applies) notwithstanding that the complainant has or had such right if by reason of special circumstances it would be unreasonable to expect him to resort or have resorted to it;

(b) Any decision, recommendation, act, or omission of any person in his capacity as a trustee within the meaning of the Trustee Act 1956;

(c) Any decision, recommendation, act, or omission of any person acting as legal adviser to the Crown or as Counsel for the Crown in relation to any proceedings;

(d) Any decision, recommendation, act, or omission of any member of the Police that may be the subject of an inquiry under the Police Act 1981 unless a complaint in relation thereto has been made or conveyed to a member of the Police superior in rank to the member to whom the complaint relates; and

(i) The complaint has not been investigated; or

(ii) The complaint has been investigated and the complainant is dissatisfied with the final result.

(8) If any question arises whether the Ombudsman has jurisdiction to investigate any case or class of cases under this Act, he may, if he thinks fit, apply to the High Court for a declaratory order determining the question in accordance with the Declaratory Judgements Act 1908, and the provisions of that Act shall extend and apply accordingly.
12. Parliament may make rules for guidance of Ombudsman –

(1) Parliament may from time to time, if it thinks fit, make general rules for the guidance of the Ombudsman in the exercise of his functions, and may at any time in like manner revoke or vary any such rules.
(2) Any such rules may authorise the Ombudsman from time to time, in the public interest or in the interest of any person or department or organisation, to publish reports relating generally to the exercise of his functions under this Act or to any particular case or cases investigated by him, whether or not the matters to be dealt with in any such report have been the subject of a report to Parliament under this Act.
13. Mode of complaint –

(1) Every complaint to the Ombudsman shall be made in writing.
(2) Notwithstanding any provision in any enactment where any letter appearing to be written by any person in custody on a charge or after conviction of any offence, or by any person who is of unsound mind within the meaning of Part XXI of the Cook Islands Act 1915, is addressed to the Ombudsman it shall be immediately forwarded to the Ombudsman by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which he is a patient.
14. Ombudsman may refuse to investigate complaint –

(1) The Ombudsman may-

(a) Refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition Parliament, to which it would have been reasonable for the complainant to resort; or

(b) Refuse to investigate any such complaint further if in the course of the investigation of the complaint it appears to him that, having regard to all the circumstances of the case, any further investigation is unnecessary.

(2) Without limiting the generality of the powers conferred on the Ombudsman by this Act, it is hereby declared that the Ombudsman may in his discretion decide not to investigate, or, as the case may require, not to investigate further, any complaint if it relates to any decision, recommendation, act, or omission or which the complainant has had knowledge for more than 12 months before the complaint is received by the Ombudsman, or if in his opinion,

(a) The subject-matter of the complaint is trivial; or

(b) The complaint is frivolous vexatious vindictive or is not made in good faith; or

(c) The complainant has not a sufficient personal interest in the subject-matter of the complaint.

(3) In any case where an Ombudsman decides not to investigate or make further investigation of a complaint he shall inform the complainant of that decision, and shall state his reasons therefore.
15. Proceedings of Ombudsman –

(1) Before investigating any matter under this Act, an Ombudsman shall inform the Head of the Department affected, or, as the case may require the principal administrative officer of the organisation affected, of his intention to make the investigation.
(2) Every investigation by the Ombudsman under this Act shall be conducted in private.
(3) The Ombudsman may hear or obtain information from such persons as he thinks fit, and may make such inquiries as he thinks fit. It shall not be necessary for the Ombudsman to hold any hearing, and no person shall be entitled as of right to be heard by the Ombudsman:
Provided that if at any time during the course of an investigation it appears to the Ombudsman that there may be sufficient grounds for his making any report or recommendation that may adversely affect any Department or organisation or person, he shall give to that Department or organisation or person an opportunity to be heard.
(4) In the case of an investigation relating to a Department or organisation named or specified in the Schedule to this Act, the Ombudsman may in his discretion at any time during or after the investigation, consult a Minister who is concerned in the matter of the investigation and the Ombudsman shall consult any Minister who so requests or to whom a recommendation which is the subject of the investigation has been made, after the Ombudsman has made the investigation and before he has formed a final opinion on any of the matters referred to in subsection (1) or subsection (2) of section 19 of this Act.
(5) In the case of an investigation relating to an organisation named or specified in Part II of the Schedule to this Act, an Ombudsman may in his discretion at any time during or after the investigation consult the Chairman of the organisation concerned, and the Ombudsman shall consult the Chairman of the organisation who so requests or to whom a recommendation which is the subject of the investigation has been made, after the Ombudsman has made the investigation and before he has formed a final opinion on any of the matters referred to in subsection (1) or subsection (2) of section 19 of this Act.
(6) If, during or after any investigation, the Ombudsman is of the opinion that there is substantial evidence of any significant breach of duty or misconduct on the part of any officer or employee of any Department or organisation, he shall refer the matter to the appropriate authority.
(7) Subject to the provisions of this Act and of any rules made for the guidance of the Ombudsman by Parliament and for the time being in force, the Ombudsman may regulate his procedure in such manner as he thinks fit.
16. Evidence –

(1) Subject to the provisions of this section and of section 17 of this Act, an Ombudsman may from time to time require any person who in his opinion is able to give any information relating to any matter that is being investigated by the Ombudsman to furnish to him any such information, and to produce any documents or papers or things which in the Ombudsman’s opinion relate to any such matter as aforesaid and which may be in the possession or under the control of that person. This subsection shall apply whether or not the person is an officer, employee, or member of any Department or organisation, and whether or not such documents, papers, or things are in the custody or under the control of any Department or organisation.
(2) Any Ombudsman may summon before him and examine on oath-

(a) Any person who is an officer or member of any Department or organisation named or specified in the Schedule to this Act and who in the Ombudsman’s opinion is able to give any such information as aforesaid; or

(b) Any complainant; or

(c) With the prior approval of the Minister of Justice in each case, any other person who in the Ombudsman’s opinion is able to give any such information-

and for that purpose may administer an oath. Every such examination by the Ombudsman shall be deemed to be a judicial proceeding within the meaning of section 120 of the Crimes Act 1969 (which relates to perjury).
(3) Subject to the provisions of subsection (4) of this section, no person who is bound by the provisions of any enactment, other than the Public Service Act 1975 and the Official Secrets Act 1951, to maintain secrecy in relation to, or not to disclose, any matter shall be required to supply any information to or answer any question put by an Ombudsman in relation to that matter, or to produce to an Ombudsman any document or paper or thing relating to it, if compliance with that requirement would be in breach of the obligation of secrecy or non-disclosure.

(4) With the previous consent in writing of any complainant, any person to whom subsection (3) of this section applies may be required by the Ombudsman to supply information or answer any question or produce any document or paper or thing relating only to the complainant, and it shall be the duty of the person to comply with the requirement.
(5) Every person shall have the same privileges in relation to the giving of information, the answering of questions and the production of documents and papers and things as witnesses have in any Court.
(6) Except on the trial of any person for perjury within the meaning of the Crimes Act 1969 in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before an Ombudsman shall be admissible in evidence against any person in any Court or at any inquiry or in any other proceedings and no evidence in respect f proceedings before an Ombudsman shall be given against any person.
(7) No person shall be liable to prosecution for an offence against the Official Secrets Act 1951 or any enactments, other than this Act, by reason of his compliance with any requirement of the Ombudsman under this section.
(8) Where any person is required by the Ombudsman to attend before him for the purposes of this section, the person shall be entitled to the same fees, allowances, and expenses as if he were a witness in a Court, and the provisions of any Act or regulations in that behalf for the time being in force shall apply accordingly. For the purposes of this subsection the Ombudsman shall have the powers of the Court under any such regulations to fix or disallow, in whole or in part, or increase the amounts payable thereunder.
17. Disclosure of certain matters not to be required –

(1) Where the Minister of Justice certifies that the giving of any information or the answering of any question or the production of any document or paper or thing-

(a) Might prejudice the security, defence, or international relations of the Cook Islands (including the Cook Islands relations with the Government of any other country or with any international organisation), or the investigation or detection of offences; or

(b) Might involve the disclosure of the deliberations of Cabinet; or

(c) Might involve the disclosure of proceedings of Cabinet or of any committee of Cabinet, relating to matters of a secret or confidential nature and would be, injurious to the public interest-

the Ombudsman shall not require the information or answer to be given or, as the case may be, the document or paper or thing to be produced.
(2) Subject to the provisions of subsection (1) of this section, the rule of law which authorises or requires the withholding of any document or paper, or the refusal to answer any questions on the ground that the disclosure of the document or paper or the answering of the question would be injurious to the public interest shall not apply in respect of any investigation by or proceedings before the Ombudsman.
18. Ombudsman and staff to maintain secrecy –

(1) The Ombudsman and every person holding any office or appointment under Ombudsman shall be deemed for the purposes of the Official Secrets Act 1951 to be persons holding office under Her Majesty.
(2) The Ombudsman and every such person as aforesaid shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions.
(3) Every person holding any office or appointment under the Ombudsman shall, before he begins to perform any official duty under this Act, take an oath, to be administered by the Ombudsman, that he will not divulge any information received by him under this Act except for the purpose of giving effect to this Act.
(4) Notwithstanding anything in the foregoing provisions section the Ombudsman may disclose such matters as in his opinion ought to be disclosed for the purposes of an investigation or in order to establish grounds for his conclusions and recommendations. The power conferred by this subsection shall not extend to any matter that might prejudice the security, defence, or international relations of the Cook Islands (including the Cook Islands relations with the Government of any other country or with any international organisation) or the investigation or detection of offences, or that might involve the disclosure of the deliberations of Cabinet.
19. Procedure after investigation –

(1) The provisions of this section shall apply in every case where, after making any investigation under this Act, an Ombudsman is of opinion that the decision, recommendation, act, or omission which was the subject-matter of the investigation-

(a) Appears to have been contrary to law; or

(b) Was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a rule of law or a provision of any Act, regulation, or bylaw or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory; or

(c) Was based wholly or partly on a mistake of law or fact; or

(d) Was wrong.

(2) The provisions of this section shall also apply in any case where the Ombudsman is of the opinion that in the making of the decision or recommendation, or in the doing or omission of the act, a discretionary power has been exercised for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations, or that, in the case of a decision made in the exercise of any discretionary power, reasons should have been given for the decision.
(3) If in any case to which this section applies the Ombudsman is of the opinion-

(a) That the matter should be referred to the appropriate authority for further consideration; or

(b) That the omission should be rectified; or

(c) That the decision should be cancelled or varied; or

(d) That any practice on which the decision, recommendation, act, or omission was based should be altered; or

(e) That any law on which the decision, recommendation, act, or omission was based should be reconsidered; or

(f) That reasons should have been given for the decision; or

(g) That any other steps should be taken-

the Ombudsman shall report his opinion, and his reasons therefore, to the appropriate Department or organisation, and may make such recommendations as he thinks fit. In any such case he may request the Department or organisation to notify him, within a specified time, of the steps (if any) that it proposes to take to give effect to his recommendations. The Ombudsman shall also, in the case of an investigation relating to a Department or organisation named or specified in Part I of the Schedule to this Act, send a copy of his report or recommendations to the minister concerned, and, in the case of an investigation relating to an organisation named or specified in Part II of the Schedule to this Act, send a copy of his report or recommendations to the Chairman of the organisation concerned, and to the Minister, if any.
(4) If within a reasonable time after the report is made no action is taken which seems to an Ombudsman to be adequate and appropriate, the Ombudsman, in his discretion, after considering the comments (if any) made by or on behalf of any Department or organisation affected, may send a copy of the report and recommendations to the Prime Minister, and may thereafter make such report to Parliament on the matter as he thinks fit.
(5) The ombudsman shall attach to every report sent or made under subsection (4) of this section a copy of any comments made by or on behalf of the Department or organisation affected.
(6) Notwithstanding anything in this section the Ombudsman shall not, in any report made under this Act, make any comment that is adverse to any person unless the person has been given an opportunity to be heard.
20. Ombudsman may require publication of summary of report –

(1) Where an Ombudsman has prepared a report under subsection (3) of section 19 of this Act relating to any organisation named or specified in Part II of the Schedule to this Act, he may prepare and send to the principal administrative officer of that organisation a written summary of the contents of his report and require that officer to make copies of that summary available during ordinary business hours for inspection by members of the public without charge. Any member of the public may make a copy of the whole or any part of the summary.

(2) Before forwarding any such written summary to the appropriate principal administrative officer under subsection (1) of this section, the Ombudsman shall send a copy of it in draft form to the Organisation to which it relates for perusal, and shall, as far as practicable, incorporate in the summary any comments made to him by the organisation.
(3) Within one week after the report is received by the organisation, the principal administrative officer of that organisation shall, at the expense of the organisation, give public notice in such form and in such newspapers as the Ombudsman shall require of the availability of the report for inspection and of the places where it may be inspected.
(4) Every such report shall be made available for a period of 4 weeks from the date of the first publication of the public notice.
21. Complainant to be informed of result of investigation –

(1) Where, on any investigation following a complaint, the Ombudsman makes a recommendation under subsection (3) of section 19 of this Act, and no action which seems to the Ombudsman to be adequate and appropriate is taken thereon within a reasonable time, the Ombudsman shall inform the complainant of his recommendation, and may make such comments on the matter as he thinks fit.
(2) The Ombudsman shall in any case inform the complainant, in such manner and at such time as he thinks proper of the result of the investigation.
22. Proceedings not to be questioned or to be subject to review – No proceeding of the Ombudsman shall be held bad for want of form, and except on the ground of lack of jurisdiction, no proceeding or decision of the Ombudsman shall be liable to be challenged, reviewed, quashed, or called in question in any Court.
23. Proceedings privileged –

(1) Except in the case of proceedings for an offence against the Official Secrets Act 1951,-

(a) No proceedings, civil or criminal, shall lie against any Ombudsman, or against any person holding any office or appointment under the Ombudsman, for anything he may do or report or say in the course of the exercise or intended exercise of his functions under this Act, unless it is shown that he acted in bad faith;

(b) No Ombudsman, and no such person as foresaid shall be called to give evidence to any Court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise his functions.

(2) Anything said or any information supplied or any document, paper, or thing produced by any person in the course of any inquiry by or proceedings before the Ombudsman under this Act shall be privileged in the same manner as if the inquiry or proceedings were proceedings in a Court.

MISCELLANEOUS PROVISIONS

24. Power of entry on premises –

(1) For the purposes of this Act, but subject to the provisions of this section, the ombudsman may at any time enter upon any premises occupied by any of the Departments or organisations named or specified in the Schedule to this Act and inspect the premises and, subject to the provisions of sections 16 and 17 of this Act carry out therein any investigation that is within his jurisdiction.
(2) Before entering upon any such premises an Ombudsman shall notify the Permanent Head of the Department or, as the case may require, the principal administrative officer of the organisation by which the premises are occupied.
(3) The Minister of Justice may from time to time by notice to the Ombudsman exclude the application of subsection (1) of this section to any specified premises or class of premises, if he is satisfied that the exercise of the defence, or international relations of the Cook Islands, including the Cook islands relations with the Government of any other country or with any international organisation.
25. Delegation of powers by Ombudsman –

(1) with the prior approval of the Prime Minister, the Ombudsman may from time to time, by writing under his hand, delegate to any person holding any office under him any of his powers under this Act, except this power of delegation and the power to make any report under this Act.
(2) Any delegation under this section may be made to a specified person or to the holder for the time being of a specified office or to the holder of offices of a specified class.
(3) Every delegation under this section shall be revocable at will, and no such delegation shall prevent the ex