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The Ombudsman’s role doesn’t include software theft.

16/11/2011

A software developer sued the New South Wales Police Force, Policy Integrity Commission and New South Wales Ombudsman for  infringement of copyright.  In particular, the NSW Ombudsman had made multiple copies of a computer software program “ViewNow” without any licence from the copyright owners.  The NSW Ombudsman admitted that it had copied the program so its employees could access records of the NSW Police Force. However, the Ombudsman claimed it was immune from liability by section 35A(1) of the Ombudsman Act 1974 (NSW) or, alternatively, that Micro Focus must obtain the leave of the NSW Supreme Court under section 35A(2) in order to bring the proceedings.

Section 35A(1) provides immunity  “in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act” unless it is done or omitted in bad faith.

Sections 35A(2) and (3) provide that leave must be obtained from the NSW Supreme Court to any proceedings and that leave should only be granted where the Court is satisfied that there is substantial ground for the applicant’s contention.

Justice Jagot accepted that “the office of the Ombudsman is unique, with the Ombudsman exercising extensive powers in the public interest for the purpose of improving public administration and accountability”. Her Honour accepted that the software was used for the purpose of discharging the functions conferred on the NSW Ombudsman by Part 8A of the Police Act 1990 (NSW).

However, in Justice Jagot’s view, these findings did not necessarily lead to immunity.  Legislation giving statutory bodies with immunity from civil and criminal liability ought be strictly interpreted – Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105.  The Ombudsman Act should not be read too broadly so as to depart from its ordinary or natural meaning. For example, the words in section 35A(1) – “for the purpose of executing this or any other Act” did not mean “for the ultimate object of executing”.  Her Honour applied a purposive interpretation and considered whether the act was “the very thing, or an integral part of or step in the very thing”  or, alternatively, whether the act could be done “without the need for specific legislative authority” (per Justice McHugh in Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575 at 35).

The reproduction of computer software is not substantive conduct of the NSW Ombudsman but was preliminary or incidental thereto and fell out of the ambit of  section 35A of the Ombudsman Act. The particular act was not “integral” or “substantial” to the Ombudsman’s duties. so it was not immune  from liability.

Read the judgement in Micro Focus (US) Inc  and ors  v  New South Wales Police Force, Policy Integrity Commission and State of New South Wales.
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