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Information Sharing and Complaint Referral Arrangements



Information sharing arrangement (Part 6, Ombudsman Act 1974)


1. Preface

Part 6 of the Ombudsman Act permits two or more relevant agencies to enter into arrangements for the sharing of information held by them. Any such sharing has to be made in accordance with an Information Sharing Arrangement entered into between the parties.


2. Definitions

In this Arrangement the following definitions apply:

complaint means a complaint (however described) that is made to a relevant agency.

disclosing agency means the relevant agency which holds the information and is referring or intending to disclose part or all of the information to another relevant agency.

receiving agency means the relevant agency with which information has or may be shared.

relevant agency means an agency specified in Schedule 1A of the Ombudsman Act that is a signatory to this Arrangement.

sensitive personal information in relation to a complainant means information relating to the complainant's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual activities.


3. Sharing of information

3.1 Circumstances in which information can be disclosed

A relevant agency is authorised to disclose information to another relevant agency in the following circumstances:

      where that other relevant agency requests the disclosure of information reasonably necessary to assist that agency to carry out its functions relating to a matter within its jurisdiction;

      where a relevant agency is referring a complaint to another relevant agency pursuant to a Complaint Referral Arrangement entered into pursuant to s.42(1) of the Ombudsman Act; or
      where a disclosing agency becomes aware that another relevant agency has received a complaint and the information held by the disclosing agency would assist the receiving agency to carry out its functions;
      where two or more relevant agencies have overlapping or adjunct jurisdictions and those relevant agencies agree that it is reasonably necessary to share information, regularly or in appropriate circumstances, in order for the disclosing agency and/or receiving agency to carry out its or their functions in an efficient manner.

Where a disclosing agency has (or should have) reason to suspect that certain information is or includes sensitive personal information about a complainant, the agency must not disclose the information without the complainant's express consent (which can either be oral or in writing) (s.43(6)).

3.2 Circumstances in which information can be received
      Information can be received by a relevant agency from a disclosing agency where:
      the information was obtained by the disclosing agency with respect to a complaint dealt with by that agency; and
      the receipt of the information is reasonably necessary to assist the receiving agency to carry out its functions (s.43(2)).

3.3 Procedures to be followed
      Any request for the disclosing of information must be in writing and nominate an appropriate contact officer.

      Where a relevant agency requests information from another relevant agency pursuant to clause 3.1, it shall provide sufficient particulars of the matter to enable that agency to identify relevant information.

3.4 Confidentiality of information provided
      It is acknowledged that confidentiality is always to be maintained within the statutory framework that exists for each relevant agency.

4. Attendance at investigations or hearings

4.1 Circumstances in which attendance can be offered

One relevant agency may authorise another relevant agency to be present during an investigation or hearing conducted by the agency:

where both agencies are conducting concurrent investigations into or otherwise reviewing related matters, being either related aspects of the same complaint or of different complaints;

where both agencies are investigating part or all of a complaint referred by one agency to the other pursuant to a Complaint Referral Arrangement entered into pursuant to s.42(1) of the Ombudsman Act; or



where an agency forms the view that the presence of the other agency is reasonably necessary to assist that other agency to effectively carry out its functions

and in each case the authorising agency believes such presence will not prejudice its investigation or hearing.

Where a relevant agency has (or should have) reason to suspect certain information likely to be disclosed during an investigation or hearing will be or include sensitive personal information, the agency must not permit another agency to be present during the investigation or hearing without the complainant's express consent (which can either be oral or in writing) (s.43(6)).

4.2 Preconditions to acceptance of an offer of attendance
      A relevant agency may accept an offer to be present during an investigation or hearing conducted by another relevant agency where:

      the investigation or hearing is in respect to a complaint; and

      the presence of the agency is reasonably necessary to assist the agency to carry out its functions (s.43(2)).

4.3 Procedures to be followed
      Any authorisation for a relevant agency or its delegate(s) to be present during an investigation or hearing conducted by another relevant agency must be in writing, signed by the head of the authorising agency or an officer of that agency with appropriate delegated authority.

      Any acceptance by a relevant agency of an offer to be present during an investigation or hearing is to be in writing, nominating the delegate(s) of the agency who will attend the investigation or hearing.

      Details about the times, dates and relevant locations of investigations or hearings may be provided orally or in writing by the authorising agency.

      Any relevant agency, or delegate(s) of a relevant agency, authorised to be present during an investigation or hearing may not intervene in the investigation or hearing (eg, by asking questions or exercising a power of entry) without the prior agreement of the authorising agency or its delegated officer.


5. Public availability of Arrangement

Copies of this Arrangement are to be:

available for public inspection at the office of each relevant agency during their ordinary office hours (s.45); and

accessible on the website of each relevant agency.

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COMPLAINT REFERRAL ARRANGEMENT
(s.42(1), Ombudsman Act 1974)

1. Preface

Part 6 of the Ombudsman Act permits two or more relevant agencies to enter into arrangements for the referral of complaints among themselves. Any such referrals have to be made in accordance with a Complaint Referral Arrangement entered into between the agencies.

2. Definitions

In this Arrangement the following definitions apply:

complaint means a complaint (however described) that is made to a relevant agency.

receiving agency means the relevant agency to which a complaint has or is to be referred.

referring agency means the relevant agency that originally received a complaint and is referring part or all of the complaint to another relevant agency.

relevant agency means an agency specified in Schedule 1A to the Ombudsman Act that is a signatory to this Arrangement.

3. Obligations on referring agency

3.1 Circumstances in which a complaint may be referred
    A complaint may be referred by a referring agency to a receiving agency if it appears to the referring agency to be within, or partly within, the receiving agency's jurisdiction. A complaint is within a receiving agency's jurisdiction if it is a complaint a person is authorised by law to make to the agency or that the agency is authorised by law to deal with (s.42(2)(a)). A complaint that is within or partly within, more than one receiving agency's jurisdiction may be referred to one of them, some of them or all of them (s.42(2)(b)).

    A relevant agency may refer a complaint, or part of a complaint, where it appears the complaint or part is within the jurisdiction of another relevant agency and:
    the complaint or relevant part is not within the jurisdiction of the referring agency; or

    the complaint or relevant part is still within the jurisdiction of the referring agency, but concurrent and coordinated investigations are warranted; or

    although a relevant part of the complaint may be within the jurisdiction of the referring agency, the majority of the complaint is within the jurisdiction of the receiving agency.


    When deciding whether to refer a complaint, the referring agency should be aware of the nature and scope of the secrecy obligations on the agency to which it is contemplating making the referral, ie, the extent to which the information can or must be kept confidential or disclosed by that agency.

3.2 Clarification of jurisdiction of receiving agency
    Where there is any doubt as to whether a complaint is within, or partly within, another relevant agency's jurisdiction, that agency is to be consulted. The views expressed by a relevant agency as to its jurisdiction are to be taken as determinative of this issue for the purposes of this Arrangement.

3.3 Consent of receiving agency
    The prior consent (either oral or written) of the receiving agency must be obtained before a complaint is referred to that agency, other than where existing statutory powers enable referral of a complaint without such consent.

3.4 Consent of complainant
    The express consent of the complainant is to be obtained before a complaint may be referred to another relevant agency (s.42(4).

    The express consent can be given orally (either over the telephone or face to face) or in writing (in correspondence, by facsimile, or by email). Where consent is given orally, a written record is to be made and retained on the relevant file.

3.5 Information to be provided to receiving agency
    Subject to the Information Sharing Arrangement entered into pursuant to s.43(1) of the Ombudsman Act, the information to accompany a referred complaint is to include:
    copies of all documentation held by the referring agency that relates to the complaint, or part of the complaint, being referred;

    whether any parts of the complaint being referred are also being referred to any other relevant agency, or any other agency, for attention;

    whether the referring agency intends to continue to deal with the complaint, or any particular part of the complaint, that is within its jurisdiction;

    details of any adjustment, set-off, award, compensation or other form of settlement made by any party to the complaint as part of the complaint resolution process operated by the referring agency.

This does not require the provision of documents obtained from any party in the course of conciliation/mediation proceedings, without the consent of the party that provided the documents.

3.6 Information to be provided to complainant
    At or about the time a complaint is or is to be referred, the referring agency is to send to the complainant the following information, in writing:
    confirmation of any oral consent to the referral;

    the name and contact details of the receiving agency or agencies;

    whether the referring agency intends to continue to deal with part or all of the complaint and if not, a notice of discontinuation, decline or dismissal.

4. Obligations on receiving agency

The receiving agency is to give the complainant the following information, in writing:

confirmation of receipt of the referred complaint, or part of the complaint;

relevant contact details;

information as to the complaints process operated by the receiving agency.

5. Public availability of Arrangement

Copies of this Arrangement are to be:

available for public inspection at the office of each relevant agency during their ordinary office hours (s.45); and

accessible on the website of each relevant agency.


The above Arrangements have been signed by the following:

Amanda Adrian
Commissioner
Health Care Complaints Commission

Bruce Barbour
Ombudsman

Steve Mark
Legal Services Commissioner

Laurie Glanfield
A/President
Anti-Discrimination Board

Maureen Tangney
A/Privacy Commissioner
Privacy NSW

Original copies of the arrangements are available for public inspection at the Office of Privacy NSW during business hours.

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Last updated: 9 August 2011
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